Yesterday I posted a correction regarding the arbitration decision on a grievance filed seeking to overturn the Honolulu Police Department’s dismissal of Sgt. Al Lee, who had gotten squeezed by conflicting pressures and interests during the active investigations of Mike Miske and then HPD Chief Louis Kealoha.

Remember the old adage, “When elephants battle the ants perish.”

Today I’ll share a little more information from the arbitration decision itself.

In the early morning hours of November 17, 2016, Sgt. Lee’s police department subsidized vehicle crashed along Lunalilo Home Road, damaging a Hawaiian Electric facility and knocking out power in the area.

The accident, and Lee’s actions, were subjects of both a civil and a criminal investigation by HPD. Results were reviewed by a departmental Administrative Review Board, which concurred with the recommendation that Lee should be fired.

On May 18, 2018, Lee was discharged after then Chief Susan Ballard determined there was sufficient evidence Lee had been driving under the influence of an intoxicant at the time of the crash, and that had made “untruthful statements” to investigators at the scene, and in subsquent interviews. Ballard also found Lee had violated department rules by speaking to the news media without prior authorization.

A grievance was filed on Lee’s behalf by SHOPO, the police officers union, and eventually an arbitration hearing was held on February 17-18, 2021 before arbitrator Audrey B Eide.

SHOPO argued the department’s internal investigation was neither fair nor thorough, because the department’s investigator “ignored Detective Lee’s expressed concerns that the civil and criminal investigations were done internally by the department, under the supervision of Chief Louis Kealoha and the Prosecutor’s Office where Deputy Prosecutor Katherine Kealoha worked.”

During the arbitration proceeding, Lee disclosed for the first time that he had been threatened by both Miske and Katherine Kealoha.

“At the time of the crash Detective Lee was cooperating in an investigation with the FBI which included the Kealohas and the notorious crime boss Mike Miske,” according to the arbitrator’s opinion. “The investigation was to be kept confidential. Detective Lee testified at the Arbitration he was threatened by Miske and warned by Prosecuting Attorney Katherine Kealoha to back off on a warrant he had out for Miske’s arrest. He was very frightened for his and his family’s safety and under a lot of stress.”

Lee also disclosed he was under a “gag order” until the FBI investigation was concluded, and asked that the department suspend his case until the gag order expired. The department declined. The existence of a gag order has not been independently verified.

SHOPO argued the department’s investigation had not pursued the question of whether Lee had been drugged, nor his belief he had been “targeted” because of his cooperation with the FBI’s investigation of Miske, and his testimony before a federal grand jury about the alleged illegal activities of Katherine and Louis Kealoha.

HPD’s internal investigation of the accident reportedly took about 5 months to complete. Louis Kealoha stepped down as chief in January 2017, well before the investigation was completed, although his wife, a deputy prosecutor and division chief went on leave from her position in April 2017. Despite Lee’s concerns, it’s difficult to tell whether the couple would have had much influence remaining during the months of the investigation, or the subsequent administrative review.

The department noted that Lee had “changed his story” several times from the night of the accident through the course of the investigation, and held that at least some of his statements were untruthful. SHOPO argued Lee had consistently said he did not remember who was driving at the time of the accident, until finally concluding that the evidence did show he had been driving, and at that point he accepted responsiblity for the crash, the arbitrator found the department’s position reasonable.

The department’s position during the arbitration was straight forward.

The Employer on the other hand, at page 16 of their brief argue that the role of the
Arbitrator is limited. In a discharge case the Arbitrator is to review and not redetermine
management’s decision or substitute their judgment for that of the Employer. They further argue that the proper standard for evaluating the Employer’s decision is whether the decision to discharge the employee was arbitrary, capricious, or unreasonable. If the Employer’s decision was not arbitrary, capricious, or unreasonable, or based on mistake of fact, its decision should stand.

Although SHOPO argued that the arbitrator should be lenient and impose discipline short of dismissal, the arbitrator noted “that leniency is the prerogative of the Employer rather than that of the Arbitrator….” And in this case at least, HPD declined to accept a lesser punishment.

In the end, the arbitrator concluded the department’s actions were not arbitrary or capricious, and “the grievance must be denied.”

See:

The Miske Files: An Officer Gets Caught In The Crossfire, Civil Beat, November 28, 2023.

“Do you believe in coincidences?,” iLind.net, April 14, 2019

“Attorney alleges prosecutors retaliated against HPD officer for businessman’s arrest,” iLind.net, April 13, 2019.

Attorneys representing accused racketeering boss Mike Miske have come up empty handed so far in their attempts to block certain evidence from being introduced by prosecutors at the upcoming trail of Miske and three remaining co-defendants, which is scheduled to begin on January 8.

Federal Judge Derrick Watson issued court orders denying two motions filed back in September by Miske’s attorneys.

While denying arguments made in a third motion, prosecutors said they do not intend to introduce evidence collected during a search of Miske’s XX-foot Boston Whaler, which was seized by federal agents who executed a search warrant in August 2017. Accordingly, Watson denied the motion as moot.

A decision on a fourth motion is still pending.

Watson’s orders followed a pair of court hearings last month during which Miske’s attorneys questioned three federal agent about affidavits they submitted in support of search warrants that were being challenged. After cross examination by prosecutors, and oral arguments on legal points, Watson deferred a decision and indicated he would issue written orders.

In their first motion, Miske’s attorneys challenged a warrant authorizing the use of a a canvassing cell-site simulator that mimics a regular cell phone tower and prompts all cell phones in its vicinity to check in. It is then able to identify all cell phones active in a wide area.

The warrant authorized investigators to use a canvassing cell-site simulator in several areas where Miske was present as he moved around during the day, or in a single spot at several different times when Miske was there for a longer period. Theoretically, the phone that was present each time could be identified as belonging to Miske.

Courts are still grappling with the implications of this new technology. Several recent decisions have held that sweeping up thousands of telephones in order to identify a single target is a search that violates the Fourth Amendment’s protection against unreasonable searches and seizures.

Miske’s attorneys argued that the warrant was unconstitutional because use of this technology does not allow searches to be narrow enough to meet the requirements of the Fourth Amendment.

Watson disagreed, and spelled out his reasoning in a 13-page order.

…the Court finds that it is unnecessary to address whether the Warrant satisfied the requirements of the Fourth Amendment. This is because, as Miske acknowledges, even if the Warrant did not comply with said requirements, that alone does not result in the suppression he seeks. Rather, suppression is not appropriate if law enforcement relied in good faith on the Warrant. Here, that undoubtedly occurred.

In addition, the order found, “Miske points to no case that would have reasonably alerted law enforcement in 2016 that the Warrant was somehow deficient.”

In a second order, Watson denied a motion that sought to suppress and exclude historical cell site location information produced by AT&T for a cell phone Miske used during the period from July 25, 2016 to January 11, 2017. The dates are important, because they include nearly a week before, a months after, the July 30, 2016 disappearance of Jonathan Fraser.

Miske’s attorneys argued several different points. They argued the government failed to obtain a search warrant, and that the phone had originally been identified by the canvassing cell-site simulator, and that later obtaining location data should be considered tainted as “fruit of the poisonous tree.”

However, Watson’s order concluded:

“…suppression is not warranted if the government can establish that it satisfied the requirements of the Stored Communications Act (“SCA”). The government argues that it did by, inter alia, submitting a “detailed” application in support of the Order (“the Application”). In reply, Miske argues that the Application was based upon “conjecture” and “speculation.”

Having reviewed the Application, the parties’ written and oral arguments, the supporting documentation, and pertinent case law, the Court agrees that the Application satisfied the requirements of the SCA. Notably, the SCA required only that the Application set forth “reasonable grounds” to believe that the evidence sought was “relevant and material” to an ongoing criminal investigation. For the reasons discussed more fully below, the Application satisfied this far from onerous standard.

Reference:

Document 1021:
ORDER DENYING DEFENDANT MICHAEL J. MISKE, JR.’S MOTION TO SUPPRESS EVIDENCE AND FRUITS DERIVED FROM SEARCH AND SEIZURE WARRANT 16-00693

Document 1022:
ORDER DENYING DEFENDANT MICHAEL J. MISKE, JR.’S MOTION TO SUPPRESS CELL-SITE LOCATION INFORMATION EVIDENCE DERIVED FROM AN ORDER IN CASE NO. 17-MC-00006

I received a tip yesterday that a new “information” had been filed on in federal court on Monday charging Dae Han Moon, one of the remaining co-defendants in the racketeering case against former Kamaaina Termite owner Mike Miske, with two federal felonies.

The document is a brief three pages long, but it says a lot.

It led to my latest story about the case, which is posted at Civil Beat today (“Miske Co-Defendant Charged With 2 Felony Offenses Ahead Of Likely Plea Deal/At 27, Dae Han Moon is the youngest of the 12 co-defendants originally charged in the federal racketeering case“).

Moon has been in federal custody since July 2020, when he was indicted on federal charges and arrested along with Miske and other co-defendants.

So why the new charges, which overlap with the charges he was already facing? What does this mean?

Well, under federal law, prosecutors much bring felony charges by first presenting their case to a federal grand jury, which will make the decision whether or not the evidence is sufficient to proceed. The grand jury is a constitional requirement.

But prosecutors can and do charge defendants without going through the grand jury process when they know the defendant and their attorney will not object. In practice, this type of charge by “information” signals that a plea deal is in the works and is now expected to be finalized.

This was the same clue that led me to write about Preston Kimoto’s expected plea deal before the plea agreement was formally announced. He was charged with a new “information,” and sure enough, about three weeks later, a change of plea hearing was scheduled, and the plea agreement was filed in court at the hearing.

I expect the same thing will be happening here and that Dae Han Moon will become the 8th of Miske’s original 12 co-defendants to have pleaded guilty. And I expect that Moon will have a lot of useful information to share with prosecutors.