Two of Mike Miske’s co-defendants who received among the longest prison sentences have now appealed their extended terms to the 9th Circuit Court of Appeals in San Francisco. Both appeals had been delayed by the long government shutdown in October, and are only now proceeding.

Attorneys representing Norman Akau, sentenced to a 14-year term, and John Stancil, sentenced to the maximum 20 years for racketeering conspiracy, filed opening briefs last week. The filings spelling out what the attorneys say were reversible errors made during sentencing by Federal Judge Derrick Watson, who presided over the racketeering cases against Miske and his criminal associates.

Both appeals are seeking to vacate the original sentences on technical grounds, and are then asking for the cases to be assigned to a different district court judge for resentencing.

The government’s answering briefs in response to the appeals are due within 30-days.

A third co-defendant, Lance Bermudez, filed a notice of appeal of his 30-year sentence, the harshest of any of the Miske-associated defendants. However, his court-appointed attorney withdrew from the case after he refused to communicate with her.

California attorney DeAnna S. Dotson had been appointed in August to handle Bermudez’ appeal. Although she was able to speak with her client once after her appointment, he refused to accept a letter explaining her appointment, which was returned to her marked ‘Inmate refused to Legal Mail,’ and subsequently refused to talk to her on the phone, according to Dotson’s declaration filed in court. In her declaration, Dotson also said she had reviewed the case and found no grounds for an appeal.

Although another San Francisco-based attorney was assigned to the case on December 2, it remains unclear whether Bermudez will cooperate sufficiently for any appeal to go forward.

In their plea agreements with the government, all three men waived most of their rights to appeal either their convictions or sentences. Their plea agreements both contained the following provisions:

The defendant knowingly and voluntarily waives the right to appeal, except as indicated in subparagraph “b” below, his convictions and any sentence within the Guidelines range as determined by the Court at the time of sentencing, and any lawful restitution order imposed, or the manner in which the sentence or restitution order was determined, on any ground whatsoever, in exchange for the concessions made by the prosecution in this Agreement. The defendant understands that this waiver includes the right to assert any and all legally waivable claims.

The exception reads: “b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to the defendant, the defendant retains the right to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined and to challenge that portion of his sentence in a collateral attack.”

I believe their sentences were within range in the sentencing guidelines, but the appeals raise questions about whether the guidelines were applied properly.

The 9th Circuit will have to determine whether the appeals as filed fall within the exception to the standard waiver. However, appeals of this kind generally have a relatively low success rate in federal criminal cases.

Akau

At the time of his arrest and detention in 2020, Akau was serving his third term on the executive board of Local 665 of the International Alliance of Theatrical Stage Employees, which represents workers in the film and stage productions.

He had been permitted to run for election to the board while still on probation after being convicted and sentenced to prison for shooting a taxi driver in a botched robbery while still a teenager, despite a federal law barring felons from union office for a period of 13-years after release from custody.

While in prison, Akau had become a member of the USO prison gang and took part in assaults carried out by the gang. Later, during trial testimony, Akau said he had continued to carry out assaults for USO after being released from prison.

Tucson-based attorney Ramiro Salazar Flores filed a 50-page appeal on behalf of Norman Akau on Monday, December 22. He argues that the government breached the terms of Akau’s plea agreement with prosecutors by including Akau’s participation in the murder-for-hire plot targeting a former ILWU official in setting the range of appropriate sentences under federal sentencing guidelines. Akau had disclosed the murder plot as part of his plea agreement, and had been repeatedly assured during plea negotiations that his disclosure would not be used against him in sentencing. Allowing it to enter into calculating the appropriate sentence was a reversible error, according to Flores’ brief.

Stancil

The opening brief in the appeal on behalf of John Blaine Stancil, younger half-brother of the late racketeering boss, Michael J. Miske, Jr., was filed on Christmas Eve by Boise-based attorney W. Miles Pope.

The appeal argues that Judge Watson made a clear error during sentencing by refusing to consider Stancil to have had only a “minor” or “minimal” role in the murder-for-hire plot against Joe Boy Tavares, a Waimanalo man Miske suspected of providing information against him to investigators and therefore wanted to have killed. Federal guidelines provide for lower sentences when such a “mitigating-role adjustment” is appropriate.

In addition, Pope argues that Judge Watson failed to explain why he had not allowed some reduction in the sentencing guideline in light of Stancil’s clean disciplinary record during the 4-1/2 years he had spend in federal detention prior to sentencing. Failure to adequately explain sentencing decisions can be considered a reversible error, according to cases cited in the appeal.

Stancil entered into a last-minute plea deal with prosecutors early on the morning the federal racketeering trial was to begin, leaving Miske to face the jury alone.

Stancil pleaded guilty to a single charge of racketeering conspiracy, but also admitted his role in the Joe Boy Tavares murder plot, aiding in the release of the chemical chloropicrin inside two nightclubs that competed with Miske’s M Nightclub and its successor, Encore, as well as a string of violent assaults.