In a pair of court filings last week, federal prosecutors argued that legal precedent requires the criminal case against former Honolulu business owner Michael J. Miske, Jr., to be vacated, legally erased, all the way back to the his original indictment in mid-2019.

However, they argued a newly filed civil forfeiture complaint sidesteps a move by Miske’s attorneys to force return of more than $20 million of property and assets seized by the goverment.

Miske was convicted in July 2024 on 13 counts including racketeering, murder for hire, kidnapping, and assault in aid of racketeering, but died of an apparent accidental drug overdose on December 1, two months before he was scheduled to be sentenced.

The government spelled out its legal position in reply to an earlier motion to vacate the proceedings filed by Miske’s defense attorneys.

Under the legal principle of abatement ab initio, the charges must be vacated because Miske’s sudden death meant that he did not have the opportunity to exercise his legal right to challenge the conviction through the process of appeals to higher courts.

The Defendant’s death pending sentencing abates these criminal proceedings ab initio. Accordingly, the Court should dismiss the indictments as to the Defendant, which will terminate these proceedings in their entirety. Because no judgment of conviction was ever issued—including no preliminary or final order of forfeiture as part of that conviction—there is nothing else to dismiss or vacate.

Prosecutors also agreed that the criminal forfeiture of Miske’s cash, real property, and other assets must also be vacated.

However, prosecutors disclosed they had filed a 100-page civil forfeiture lawsuit the previous day identifying the same properties as subject to forfeiture to the government because they comprise “ill-gotten gains” that were “used in furtherance of, and were proceeds of, pervasive wire fraud, financial institution fraud, money laundering, and conspiracies perpetrated by the Defendant and others.”

Moving the forfeiture action to civil court makes the pending criminal forfeiture moot, prosecutors argued.

Accordingly, any motion under Federal Rule of Criminal Procedure 41(g) seeking the return of this same property in the criminal proceeding is now moot, and this Court no longer has jurisdiction to entertain such a motion. Those claiming an interest in the illegally obtained and illegally used Defendant Properties must pursue a remedy through the civil forfeiture proceedings.

Further, the attempt to block forfeiture of Miske’s assets was brought by Miske’s attorney’s on his behalf, rather than on behalf of his estate and beneficiaries.

But after Miske’s death, “the deceased Defendant…no longer has any property or privacy interests that might be impaired by the seizure or retention of the Defendant Properties. A decedent’s property interests pass to his heirs at the time of his death; those interests are not held by the decedent after death.”

As a result, prosecutors argue, neither Miske nor his defense attorneys have standing to challenge the asset forfeiture.

One additional point put forward by prosecutors is that the jury’s guilty verdict should be left standing and not vacated along with the indictments.

“Under the doctrine of abatement ab initio, it is the judgment of conviction, as opposed to the jury verdict, which is vacated along with the dismissal of the indictment,” prosecutors argue.

“The government has found no case in any jurisdiction in which a court has ordered that a jury verdict, as opposed to a judgment of conviction, be vacated under the doctrine of abatement ab initio.”

Miske’s defense has a February 7 deadline to file a reply to the government’s position. Federal Judge Derrick Watson, who has handled this case from the beginning, will then decide whether a hearing is necessary before issuing a ruling.