Category Archives: Police

Why was a federal watchdog part of the Miske investigation?

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Here’s a question that has arisen out of the lengthy federal investigation that resulted in the 22-count indictment of former Kamaaina Termite and Pest Control owner Michael J. Miske Jr. and 12 co-defendants.

Did investigators suspect Miske’s alleged criminal organization was benefiting from an insider’s assistance?

The question hit me last year when prosecutors filed a legal motion seeking to have the case declared “complex” due to both its length and breadth, the number of defendants, number of charges, and sheer amount of evidence. The designation was being sought to provide additional time for both prosecutors and defendants to prepare for trial because of the volume of evidence that has to be reviewed.

According to the memo, filed in August 2020:

The charges in this case arise out of a long-term investigation conducted by the Federal Bureau of Investigation; the Internal Revenue Service Criminal Investigation; the Environmental Protection Agency, Criminal Investigative Division; the Office of the Inspector General in the Department of Justice; Homeland Security Investigations; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Let’s see.

FBI? Check. Of course.

IRS? Check. They have spent years analyzing the bank and business records of Miske’s companies, as well as his personal finances,for violations of tax laws.

EPA? Check. Several charges involve criminal misuse of chemicals used in termite treatment.

ATF? Check. Many of the charges are firearms related, and other allegations include arson, such as burning vehicles to destroy evidence, as well as one instance where burning down a home was considered.

Homeland Security? Check. Naturally involved in drug trafficking and money laundering investigations.

OIG? This one is different. The Department of Justice Office of Inspector General is the internal watchdog that investigates criminal wrongdoing by FBI agents, prison officials, and other DOJ employees, contractors, and grantees. OIG doesn’t investigate violations of agency rules, or other personnel matters, just actions that may violate criminal laws.

OIG’s participation in the Miske investigation was not made public at the time of Miske’s arrest and indictment. At that time, then-U.S. Attorney Kenji Price, while announcing the indictments, gave credit to the law enforcement agencies that contributed to the case, even acknowledging assistance from additional agencies, including “the Coast Guard Investigative Service, the United States Marshals Service Fugitive Task Force, the Hawaii National Guard, 93rd Civil Support Team, and the Office of Investigations–Office of the Inspector General for the Social Security Administration….”

But the Justice Department’s own Inspector General was not mentioned.

The Justice Department’s Office of Inspector General investigates alleged violations of criminal law by Department of Justice employees, and also audits and inspects DOJ contractors, grantees, and programs. The OIG regularly reports to Congress, listing cases it has pursued, which include numerous investigations leading to criminal charges against prison officials, law enforcement agents, or other DOJ employees accused of accepting bribes, for example.

It doesn’t appear Miske and his companies were DOJ contractors or grantees, or involved in DOJ programs. That seems to leave “alleged violations of criminal law by Department of Justice employees….”

At one point, I thought perhaps this could have been related to the incident in November 2015 in which Miske was pulled over for talking on his phone while driving near the Kamaaina Termite office in Kakaako, but left the scene before he was cited. When the officer and his boss later sought to follow-up, Miske phoned the officer, Jared Spiker, and threatened “to go to the top of the food chain.” Shortly thereafter, Katherine Kealoha and others in the city prosecutor’s office lodged official complaints with HPD about Spiker’s sergeant, Albert Lee, which led to disciplinary action against him, creating speculation about the nature of Miske’s connection with the prosecutor’s office.

The initial traffic stop was part of a program funded by a federal grant, and I thought OIG might have gotten involved because of the complaints filed with the HPD program funded through this grant. However, the grant turns out to have been from the Department of Transportation, not Justice, so no reason here for the DOJ inspector general to be involved.

I have only found one additional reference to OIG’s involvement in the Miske case. It appears in a declaration dated by August 7, 2020 by attorney Lynn Panagakos, who is part of Miske’s defense team.

8. On August 4, 2020, AUSA Michael Nammar informed me that confidential legal mail from Mr. Miske to his counsel was sent by FDC Honolulu not to Mr. Miske’s counsel, but instead to an attorney employed by the United States Department of Justice, Office of Inspector General. DOJ-OIG has been a member of the Government’s investigation/prosecution team in this case (see Dkt. # 131, p. 3). AUSA Nammar further informed me that it was his understanding that this attorney recognized that the mail was privileged after reading approximately 1-page of the correspondence. AUSA Nammar had no explanation as to why FDC Honolulu mailed clearly identified confidential, privileged, legal mail to the DOJ-OIG attorney, or why this attorney reviewed a portion thereof. AUSA Nammar further advised that this DOJ-OIG attorney would no longer be working on the case.

I then wondered whether it was routine for OIG to be standing by during a complicated long term investigation like this.

However, I queried several people familiar with the operations of the US Attorneys Office in Hawaii, and each said they were not aware of OIG being involved in any criminal investigations locally. All agreed it is extremely unusual.

An online search turned up one prior case of this kind here in Hawaii that would likely have involved OIG. In 2004, the FBI began an investigation after discovering a secretary in the agency’s Honolulu organized crime and drug unit was tipping off her husband and other members of a drug trafficking ring, providing them information from FBI computers. The two year investigation led to charges against more than 35 people, including five Honolulu police officers, a Honolulu liquor commission inspector, and the head of security for Aloha Stadium. Thousands of pages of FBI wiretap transcripts were handed over to HPD, leading to “a massive internal investigation” which resulted in disciplinary action taken against an unknown number of officers, according to news accounts at the time.

Here’s an excerpt from a Honolulu Advertiser story by Peter Boylan published December 21, 2008. Boylan was writing a wrap-up article reviewing the long investigation and its impacts.

Did high speed police chase precede fatal Waikiki crash?

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There was a fatal crash on the Diamond Head end of Kapiolani Park just past the Dillingham Fountain and the Elks Club about 3:30 Sunday morning. Most news stories said a 39-year old man was killed in the single car crash, and that speed was suspected to be a factor. The wreckage had not been removed when we arrived for breakfast at the Elks about 8 a.m.

But Hawaii News Now reporter Rick Daysog added a critical point in his story on the crash.

“Multiple sources said the 39-year-old driver was seen racing by the Waikiki Police substation when police began to pursue his red Ford Mustang,” Daysog reported.

Daysog did not press the issue of a police pursuit, and no other media reported it.

The question is important: Were police pursuing the speeding red Mustang when it crashed? And the lingering question–Did an active police pursuit contribute to the fatal crash?

See:

“Advocates urge traffic safety following deadly Memorial Day weekend crashes,” Rick Daysog, Hawaii News Now, May 30, 2021.

Bank says site of last week’s fatal police shooting was owned by disbarred attorney Gary Dubin

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The Coelho Lane home where a violent encounter last week ended with police fatally shooting an unarmed burglary suspect, was purchased by controversial Honolulu foreclosure attorney Gary Victor Dubin and an associated Nevada company in 2007, according to a lawsuit filed April 1 by HSBC Bank USA seeking to foreclose on the mortgage.

According to documents filed in the case, Dubin borrowed $2,000,000 on June 14, 2007 secured by the property at 91 Coelho Way. The note, a copy of which is attached to the lawsuit, was signed by Dubin for himself personally, and as manager for Greentree Properties, LLC, a Nevada limited liability corporation.

Other defendants named in the lawsuit because they may claim an interest in the property are Gregg Kamm, Trustee Of The Greg Kamm 401(K) Profit Sharing Plan Effective January 1, 2013; James H. Hall; and Pamalu Roofing & Raingutters, Inc.

The lawsuit alleges Dubin and Greentree were notified in March 2019 that they were behind in their payments and in default on the loan, and were provided 33 days to cure the default. The amount past due and owed at that time was $244,950.97, according to a collection letter of that date filed in court. The bank also provided notice that failure to make the required payment could result in the bank choosing “to accelerate the entire balance outstanding under the terms of the Note and Mortgage.”

The Mortgage provides that in the event of foreclosure, Plaintiff may be awarded all expenses incurred in pursuing this remedy, including reasonable attorneys’ fees and costs, expenses or advances made necessary or advisable or sustained by Plaintiff because of default or in order to protect the security of the Mortgage. As of February 17, 2021, the total due and owing excluding outstanding legal fees and costs under the Note is $2,024,720.01. In addition, per diem interest in the amount of $330.0629 will continue to accrue on the principal from February 17, 2021, along with other additional fees, costs, and advances and legal fees and costs.

Peter Boylan reported in today’s Honolulu Star-Advertiser that the property “has been the focus of repeated complaints and unsuccessful government investigations that it was operating as an illegal vacation rental.” [See “Site of fatal shooting in Nuuanu has been subject of repeat complaints.”]

In 2019 and 2020 the city Department of Planning and Permitting investigated seven complaints that 91 Coelho Way was being used as an illegal short-term rental. Rentals of fewer than 30 days are not allowed at the property, said DPP spokesman Curtis Lum.

After the Hawaii Supreme Court issued its order of disbarment against Dubin which became effective November 9, 2020, Dubin sought to appeal to the U.S. Supreme Court, temporarily halting “reciprocal discipline” proceedings in Honolulu’s federal court and the 9th Circuit Court of Appeals. The U.S. Supreme Court issued an order on April 5 declining to hear the case.

Federal Judge Jill Otake then issued an order on April 14 lifting the stay and allowing the disciplinary case to move forward in the Hawaii court. The 9th Circuit court has been notified but has not taken additional action yet, according to the case information available online.

See: “U.S. Supreme Court rejects Dubin appeal,” iLind.net, April 19, 2021.

Federal appeals court upholds disclosure of New York police misconduct records

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After decades of secrecy, the New York City Civilian Complaint Review Board, the agency with oversight over complaints against the city’s police and other law enforcement officers, posted a publicly-accessible online database with information on more than 83,000 past complaints against active and inactive NYPD officers.

The records include the date of each incident, complaint type, penalty impose (if any), and can be indexed by rank, precinct, shield number, name of the officer involved and number of other substantiated complaints.

The state legislature amended the law last year to eliminate a special exemption from the law enforcement officers, but public disclosure of the records had been delayed by a series of lawsuits filed by unions representing New York police officers, fire fighters, and correctional officers impacted by the change.

Last month, the U.S. 2nd Circuit Court of Appeals rejected the unions’ bid for an injunction to delay any required disclosure until all of their pending cases and appeals have run their course.

Documents from the long history of the issue in New York has been collected by the New York State Defenders Association.

Many of the issues considered and rejected in the ruling are relevant to the continued efforts to block disclosure of police misconduct by the State of Hawaii Organization of Police Officers (SHOPO), the union representing police officers statewide.

For example, the court ruled the NY Police Department “cannot bargain away its disclosure obligations” under state law. Indeed, the rights implicated are not rights of police officers, but rather the right of the public to access information to hold the police, and individual officers, accountable. The court also noted that while “numerous other states make similar records available to the public,” the unions did not present any evidence officers have been “irreparably harmed” by public disclosures in those jurisdictions. The New York unions argued officers would face additional dangers on the job if misconduct were disclosed, and would also be harmed in future job searches if unfounded or unsubstantiated complaints were made public. The court found neither argument was backed up by evidence.

See:

“Police Unions Lose Bid to Keep Disciplinary Records a Secret,” Benjamin Weiser, NY Times, February 16, 2021

“NYPD Watchdog Releases Long-Awaited Database On Police Misconduct,” Jake Offenhartz, Gothamist.com, March 4, 2021.

Documents in SHOPO v. City & County of Honolulu, Civil Beat Law Center.