Chief Judge Derick K. Watson, who has presided over the racketeering case of the late owner of Kamaaina Termite and Pest Control, Michael J. Miske, Jr., since its inception, issued a 6-page legal order on Wednesday that, as expected, dismissed the Miske indictments pursuant to the doctrine of abatement ab initio. Miske’s attorneys and federal prosecutors agreed on this point, and the ruling was a foregone conclusion.
The parties appear to disagree, however, over whether the Jury Verdicts should be vacated. The same Ninth Circuit precedent set forth above is clear: all proceedings are abated from the inception of Miske’s prosecution. In perhaps more common parlance, everything that occurred in this prosecution, as it relates to or affects Miske, is negated. See Black’s Law Dictionary 3 (12th ed. 2024) (defining “abatement ab initio” as the “negation of a criminal trial and verdict after a convicted defendant has died before exhausting all legal appeals. The case reverts to the beginning point as if the trial and conviction had never occurred.”). This means that points of interest, such as the Order permitting defense counsel to withdraw, the Order denying a change of venue, and the Order addressing over fifty (50) motions in limine never occurred, at least as they relate to Miske. More pertinent to the parties’ specific dispute, it means that the Jury Verdicts never occurred too. It is, thus, entirely unnecessary for the Court to formally vacate or not vacate the Jury Verdicts, as the parties appear to fight over, because, under the circumstances here, the natural consequence of Miske’s death is that all proceedings in this prosecution from its inception are negated.
Watson’s ruling, citing 9th Circuit precedent, notes that this “prevents, among other things, recovery against the estate of a fine imposed as part of the conviction and sentence and use of an abated conviction against the estate in related civil litigation.” Emphasis added.
This clearly precludes the government from using the jury verdicts to support its pending civil forfeiture lawsuit that was filed on January 22.
However, due to the pending lawsuit, Watson declined to release any of the disputed Miske property to his heirs or beneficiaries. The outcome of the civil case will determine whether the long list of assets will eventually be seized by the government or distribted to Miske’s beneficiaries.
Watson agreed with the government that Miske’s defense attorneys do not have standing to challenge the government’s forfeiture lawsuit.
“Rather, it is Defendant’s estate and/or heirs that must do so, if at all,” Watson noted.
It is currently unclear just who has such standing to represent Miske’s estate or heirs. In August 2020, a month after Miske’s indictment and arrest, he signed a power of attorney giving his mother, Maydeen Stancil, “full power and authority to do and perform all and every act, deed, matter and thing whatsoever in and about my estate, property and affairs….” A section of the trust agreement was filed in court during the criminal proceedings.
One phrase in a portion of the trust agreement caught my eye.
It states, in part: “This assignment includes all of my real, personal, tangible, and intangible property, located in the United States….”
Is this simply legal boilerplate language, or does it imply there may be additional property outside of the United States?
In any case, the power of attorney is no longer valid after Miske’s death.
Prior to his death, Miske remained the trustee of his own living trusts. The trust agreement named three individuals who would take over as successor trustee of his trust, along with “separate trusts” established to benefit an individual whose name is redacted, in the event of Miske’s death. The named trustees, in order, are Jason Yokoyama, Miske’s longtime employee, business partner, and co-defendant; Alen Kaneshiro, an attorney whose clients included Miske and a number of his associates; and John Stancil, Miske’s half-brother and co-defendant.
Nothing in the public record has yet indicated whether one of these individuals is now serving as trustee, with standing to intervene in the government’s civil foreclosure lawsuit on behalf of Miske’s estate. The properties themselves are named as defendants in this lawsuit, rather than Miske’s trust, or any of Miske’s possible heirs or beneficiaries. The limited court record to date does not include notice of the lawsuit to any other party.