At the end of closing arguments last week in the trial of Mike Miske, the defendants lead attorney, Michael Kennedy, made an oral motion asking the Judge Derrick Watson for a judgment of acquittal. Kennedy argued that the government had failed to present sufficient evidence to support most of the charges.

At 4:20 p.m. Monday afternoon, Watson ordered attorneys to submit supplemental briefs pointing to specific evidence admitted in the case that supports “each of the challenged elements and/or issues.”

Watson’s order is basically a demand that prosecutors justify their general assertion that there is “sufficient evidence” to support each of the remaining charges.

This is the second motion for a directed judgment of acquittal. A similar motion was made last month when the government rested its case in chief.

At that time, Judge Watson denied the motion as to most of the charges, although it was granted on two charges stemming from the ambush of Lindsey Kinney at Kualoa Ranch in 2017.

Watson’s order spelled out the legal standard.

Rule 29(a) provides that, after the close of the government’s evidence, “the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” The Ninth Circuit Court of Appeals has explained that, when facing a sufficiency of the evidence challenge, a court should consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

The latest motion challenged Counts 1,4, 10-11, 15, and 21 in the Third Superseding Indictment on general grounds of insufficient evidence.

Count 1. Racketeering conspiracy

Count 4. Murder-for-hire conspiracy resulting in death [Fraser murder]

Count 10. Conspiracy to Commit assault in aid of racketeering

Count 11. Conspiracy to commit kidnapping [Accountant Robert Lee’s kidnapping]

Count 15. Conspiracy to distribute and possess with intent to distribute cocaine [2014 cocaine deal]

Count 21. Obstruction of justice [fraudulent letter]

However, each of these were included in an earlier motion for acquittal made last month after the government rested its case in chief. Judge Watson had denied that motion as to these counts, finding in each case sufficient evidence had been presented, although he granted the motion as to the two counts stemming from the ambush of Lindsey Kinney at Kualoa Ranch in 2017.

Since nothing has changed since the earlier motion was denied, it is likely Watson will again rule against acquitting on these charges.

But the current motion also challenged additional charges on specific grounds.

Count 2 (Murder in aid of racketeering in the Fraser case) and Count 3 (conspiracy to commit the Fraser murder) are being challenged because, Kennedy argues, the “purpose element” was not established.

Here’s what the final set of jury instructions say is needed to be proven regarding “purpose.”

With respect to the fourth element, the government must prove beyond a reasonable doubt that the Defendant’s “purpose” was to gain entrance to, or to maintain, or to increase his position in the enterprise. It is not necessary for the government to prove that this motive was the Defendant’s sole purpose, or even the primary purpose, in committing the charged crime. You need only find that enhancing his status in the enterprise was a substantial purpose of the Defendant or that he committed the charged crime as an integral aspect of membership in the enterprise. In determining the Defendant’s purpose in committing the alleged crime, you must determine what he had in mind. Because you cannot look into a person’s mind, you have to determine purpose by considering all the facts and circumstances before you.

The motion then challenges two additional charges (Counts 5 and 6), both related to the alleged kidnapping of Johnny Fraser. Miske’s motion argues that the government failed to prove that he was kidnapped.

It also challenges Count 7, the alleged murder-for-hire conspiracy targeting Joe Boy Tavares. The motion argues that the government “did not establish that Miske offered cash to John Stancil and Dae Han Moon in exchange for their agreement to murder Joy Boy Tavares.”

And, finally, the motion attacks Count 22, one of two counts alleging that Miske took part in putting together fraudulent character reference letters that were submitted during a hearing seeking his release on bond. The motion argues that the letter at issue was “not altered so as to obstruct justice.”

Watson’s order gave the attorneys until the close of business on Friday to file supplemental briefs of up to five pages “citing evidence admitted during the trial that supports the arguments and/or representations made at the July 2, 2024 hearing regarding Count 2-3, 5-7, and 22. Should the parties rely upon trial testimony, they must provide specific line and page citations to the relevant transcript(s).”