Just after 4 p.m. on Tuesday, July 23, Judge Derrick K. Watson filed an order denying a last-ditch effort by Michael Miske’s attorneys seeking to obtain a judgment of acquittal finding their client not guilty of most of the charges against him. Lead attorney Michael Kennedy made the oral motion in court on July 2, after both sides had rested their cases.

A judgement of acquittal is justified if evidence in the case 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.”

Last week, Watson had asked both the government and defense to submit supplemental legal briefs pointing to specific evidence in the trial record to support their respective positions.

Watson’s order denying the motion for acquittal spelled out the reasons that each argument presented by the defense was found wanting.

Kennedy had argued for acquittal on one set of charges citing only general lack of evidence. Watson notes that the general request was made “with no further specificity or, in fact, argument of any sort,” and was denied as to those counts.

The defense also challenged three charges stemming from release of the chemical chloropicin in nightclubs that competed with Miske’s M Nightclub and its successor, Encore, along with a charge of bank fraud involving loan application for vehicle leases. These charges had been unsuccessfully challenged in a similar motion filed after the government had rested its case back in early June. That earlier motion had been denied.

Watson’s order chastised the defense for failing to acknowledge the earlier effort.

“At the July 2, 2024 hearing, Miske failed to mention the Court’s prior rulings with respect to these Counts, let alone explain why the same were erroneous or should be reconsidered in light of intervening evidence,” Watson wrote. As a result, “the Court’s prior rulings (much like Miske’s arguments) remain unchanged. Therefore, the motion for judgment of acquittal is DENIED with respect to Counts 12-14 and 20.”

Finally, Miske’s motion had challenged two charges for the murder of Jonathan Fraser in aid of racketeering, and conspiracy to carry out the murder.

The defense argued that the trial evidence showed only Miske’s personal motive behind the murder. However, prosecutors responded that there can be mixed or multiple motives, and “there was also evidence that Miske committed the offenses with the purpose of “maintain[ing]” or “increas[ing]” his position in the alleged enterprise.” Watson again sided with the government and denied the motion for judgement of acquittal.

Miske’s defense then challenged two counts involving Fraser’s kidnapping and conspiracy to carry out the kidnapping. Here the defense said there was insufficient evidence to prove a kidnapping had taken place. Watson disagreed.

Viewing the evidence in the light most favorable to the government, the Court agrees that there was sufficient evidence to send Counts 5-6 to the jury. As the government observed at the July 2, 2024 hearing and in its supplemental brief, numerous personal items belonging to Fraser were found in his apartment-items that testimony indicated Fraser would not have left behind if he departed the apartment of his own free will. Further, in the light most favorable to the government, the evidence reflected that other items in the apartment suggest Fraser left in a hurried fashion; Fraser’s bedroom in the apartment could not be locked; Fraser’s dog had been left outside the apartment on the lanai without food or water-something that Fraser would never do; Miske warned Aaron Wong that he was “lucky” his daughter-Fraser’s girlfriend was not taken; and a white van was caught on video in the area of the apartment on the day of Fraser’s disappearance —a van that was driven and subsequently burned by Miske’s associates. While, alone, each piece of the foregoing evidence may have more or less persuasive force, in toto and in the light most favorable to the government, a rational trier of fact could find that Fraser was kidnapped for purposes of Counts 5-6 beyond a reasonable doubt. The motion for judgment of acquittal is, therefore, DENIED with respect to those counts.

The next challenge, this to Count 7 involving a murder-for-hire conspiracy to kill Joe Boy Tavares, Miske’s defense argued “while the Third Superseding Indictment (TSI) alleges Miske offered money to John Stancil and Dae Han Moon in exchange for the murder of Tavares, the evidence did not show any offer of payment to either Stancil or Moon.”

Prosecutors countered that “irrespective of whether Stancil and Moon were offered money to murder Tavares, there was evidence that (1) Harry Kauhi was given a down payment for the murder by one of Miske’s associates, and (2) Lance Bermudez accepted a contract from Miske himself to kill Tavares in exchange for a promise of payment, and Bermudez later ‘enlisted’ Moon to assist him with carrying out the murder.”

Here Watson concluded that the evidence established the basic elements of the charge as required by the jury instructions, and noted that the court had accepted the relevant jury instructions proposed by Miske’s attorneys.

Watson’s order concludes that when taken in the light most favorable to the prosecution, all the elements had been established by Jake Smith’s testimony, “even though Smith’s testimony did not establish that Miske offered Stancil or Moon money to kill Tavares, because the jury instructions, which Miske proposed, did not require the government to prove any such offer(s).”

One final challenge to the obstruction of justice charge involving the repurposing of a character reference letter was simply denied because, Watson concluded, “a rational trier of fact could find obstruction for purposes of Count 22 beyond a reasonable ”

Following the denial of Miske’s motion for judgment of acquittal, the jury verdict of “guilty” on 13 counts stands.

Watson’s order of July 23 appears below.

ORDER Denying Defendant Michael J. Miske Jr.'s Motion For Judgment Of Acquittal by Ian Lind on Scribd