Case 1:19-cr-00099-DKW Document 131 Filed 08/04/20 Page 1 of 15 PageID #: 668

KENJI M. PRICE #10523

United States Attorney
District of Hawaii

MICHAEL NAMMAR
MICAH SMITH
MARK A. INCIONG
Assistant U.S. Attorneys
Room 6-100, PJKK Federal Bldg.
300 Ala Moana Boulevard
Honolulu, Hawaii 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-2958
Email: Michael.Nammar@usdoj.gov
Micah.Smith@usdoj.gov
Mark.Inciong@usdoj.gov

Attorneys for Plaintiff

UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA, ) CR. NO. 19-00099-DKW

)
Plaintiff, ) MOTION TO DECLARE CASE
) COMPLEX UNDER 18 U.S.C.
vs. ) § 3161(h)(7) AND TO CONTINUE
) TRIAL; CERTIFICATE OF SERVICE
MICHAEL J. MISKE, JR., aka “Bro,” et )
al., )
)
Defendants. )
)

MOTION TO DECLARE CASE COMPLEX UNDER 18 U.S.C.

§ 3161(h)(7) AND TO CONTINUE TRIAL
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The United States of America respectfully moves to declare this case

complex, under 18 U.S.C. §§ 3161(h)(7)(A) and (h)(7)(B)(ii), and to continue the

trial date for one year. This case involves eleven defendants who are collectively

charged with racketeering conspiracy, various acts of violence (including one

defendant charged with death-penalty-eligible offenses), chemical weapon attacks,

firearms offenses, drug trafficking, and bank fraud. The racketeering conspiracy is

alleged to have included a wide variety of criminal activities, ranging from acts

involving murder, kidnapping, and arson to wire fraud, fraud in connection with

identification documents, and obstruction of justice. The evidence includes Title

III wiretap interceptions and voluminous amounts of electronic discovery. In light

of the number of defendants and the nature of the prosecution, the Court should

declare this case complex.

The government has conferred with nearly all defense counsel in advance of

submitting this motion. Of the eleven charged defendants in this case, nine have

no objection to the designation of the matter as complex. The government has not

yet had an opportunity to confer with counsel for defendants KAULANA

FREITAS and HARRY K. KAUHI, both of whom were appointed recently. In

addition, counsel for seven defendants have no objection to the continuance of the

trial date for one year. Defendants MICHAEL BUNTENBAH and NORMAN L.

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AKAU, III, do not agree to a one-year continuance, and, as noted, the government

has not yet had an opportunity to confer with counsel for FREITAS and KAUHI.

Finally, defendant MICHAEL J. MISKE, JR., has provided a written

explanation of his position, which is attached here as Exhibit A. MISKE does not

oppose the motion, but provides additional authorities and arguments that apply to

certain charges he faces.

I. Procedural and Factual Background

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.

On June 18, 2020, a grand jury returned a sealed 22-count superseding

indictment (the “Indictment”) charging eleven defendants. Ten of the defendants

are charged with participating in a racketeering conspiracy headed by MISKE in

violation of Title 18, United States Code, Section 1962(d). As alleged, the

racketeering conspiracy included a wide variety of criminal activities over a period

of more than two decades, including acts involving murder, kidnapping, arson, and

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robbery; and acts relating to murder-for-hire, chemical weapons, extortionate credit

transactions, racketeering, interference with commerce, robbery, extortion, drug

trafficking, wire fraud, fraud in connection with identification documents, financial

institution fraud, the Currency and Foreign Transactions Reporting Act, money

laundering, and obstruction of justice. The eleventh defendant, BUNTENBAH, is

not charged with racketeering conspiracy, but is charged with conspiring MISKE

and others to commit assault in aid of racketeering, as well as conspiring to engage

in the trafficking of controlled substances. The Indictment also collectively

charges various acts of violence (including one defendant, MISKE, charged with

death-penalty-eligible offenses), chemical weapon attacks, firearms offenses, drug

trafficking, and bank fraud.

The evidence in this matter is voluminous. It includes (i) court-authorized

Title III wiretap interceptions of wire and electronic communications, which

captured pertinent communications; (ii) forensic extractions of multiple cellular

telephones; (iii) audio and video recordings from controlled purchases of drugs;

(iv) the results of search warrants at physical locations; (v) the results of search

warrants on social media accounts; (vi) the laboratory testing of controlled

substances; (vii) the pen register and trap and trace toll records of numerous

phones; (viii) cooperating sources and cooperating witnesses; and (ix) physical

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surveillance that law enforcement conducted in coordination with the Title III

wiretap interceptions and during controlled purchases of drugs, among other

things. The discovery also includes voluminous financial and business records that

contain personal identifying information and other sensitive data.

The Superseding Indictment was unsealed on July 15, 2020, and MISKE and

certain other defendants were arrested. On the day of these arrests, law

enforcement agents executed search warrants at five separate physical locations.

II. Applicable Law

The Speedy Trial Act of 1974 (the “Act”), generally requires that a

defendant’s trial begin within seventy days of the later of either (i) “the filing date

(and making public)” of the indictment, or (ii) “the date the defendant has appeared

before a judicial officer of the court in which such charge is pending”. 18 U.S.C. §

3161(c)(1). This general requirement is not, however, absolute: the Act provides

that certain periods of delay “shall be excluded in computing the time within which

. . . the trial of any such offense must commence.” Id. at § 3161(h).

One appropriate basis for the exclusion of time is an “ends of justice”

continuance—that is, a continuance based on a judge’s finding that “the ends of

justice outweigh the best interest of the public and the defendant in a speedy trial.”

Id. at § 3161(h)(7)(A). The Act provides that a judge should consider, among

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other things, the following factors in determining whether to grant an “ends of

justice” continuance: (i) whether “the failure to grant such a continuance in the

proceeding would be likely to make a continuation of such proceeding impossible,

or result in a miscarriage of justice”; (ii) whether “the case is so unusual or so

complex, due to the number of defendants, the nature of the prosecution, or the

existence of novel questions of fact or law, that it is unreasonable to expect

adequate preparation for pretrial proceedings or for the trial itself within the time

limits established by this section”; and (iii) whether “the failure to grant such a

continuance in a case which, taken as a whole, is not so unusual or so complex as

to fall within clause (ii), would deny the defendant reasonable time to obtain

counsel, would unreasonably deny the defendant or the government continuity of

counsel, or would deny counsel for the defendant or the attorney for the

Government the reasonable time necessary for effective preparation, taking into

account the exercise of due diligence.” 18 U.S.C. § 3161(h)(7)(B)(i)-(iv).

The “ends of justice” continuance provides much of the Act’s “flexibility”

by allowing courts “to accommodate limited delays for case-specific needs.”

Zedner v. United States, 547 U.S. 489, 498-99 (2006); see also United States v.

Low, 452 F. Supp.2d 1036, 1039 (D.Haw. 2006). Zedner further explains:

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The exclusion of delay resulting from an ends-of-justice

continuance is the most open-ended type of exclusion
recognized under the Act and, in allowing district courts to
grant such continuances, Congress clearly meant to give
district judges a measure of flexibility in accommodating
unusual, complex, and difficult cases. But it is equally clear
that Congress, knowing that the many sound grounds for
granting ends-of-justice continuances could not be rigidly
structured, saw a danger that such continuances could get out
of hand and subvert the Act’s detailed scheme. The strategy
of § 3161(h)(8), then, is to counteract substantive
openendedness with procedural strictness. This provision
demands on-the-record findings and specifies in some detail
certain factors that a judge must consider in making those
findings.

Zedner, 547 U.S. at 498-99.

The Ninth Circuit has explained that a court must satisfy two requirements

before granting an “ends of justice” continuance pursuant to this section: “(1) the

continuance must be specifically limited in time; and (2) it must be justified [on the

record] with reference to the facts as of the time the delay is ordered.” United

States v. Qadri, 562 F. App’x. 590, 592 (9th Cir. 2014) (quoting United States v.

Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997)); see also U.S. v. Lewis, 611 F.3d 1172,

1176 (9th Cir. 2010); Low, 452 F. Supp.2d at1040 (observing that the court must

set forth specific “reasons for finding that the ends of justice served by the granting

of the continuance outweigh the best interests of the public and the defendant in a

speedy trial” and “[t]hose reasons must be set forth with particularity”).

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When granting a request for a reasonable period of delay, the court must list

the “specific underlying factual circumstances” that make the case complex and

merit a continuation. United States v. Martin, 742 F.2d 512, 513 (9th Cir. 1984).

Specifically, the court

must conduct an appropriate inquiry to determine whether the

various parties actually want and need a continuance, how
long a delay is actually required, what adjustments can be
made with respect to the trial calendars or other plans of
counsel, and whether granting the requested continuance
would “outweigh the best interest of the public and the
defendants in a speedy trial.”

Lloyd, 125 F.3d at 1269.

An “ends of justice” continuance may properly be granted in order to

provide the government with additional time to prepare the factual record and

prepare for trial. In United States v. Dota, 33 F.3d 1179, 1183 (9th Cir. 1994), for

example, the district court justified a continuance over a defendant’s objection, in

part because the government needed more time to prepare for trial. As the Ninth

Circuit explained, an “ends-of-justice continuance may be justified on grounds that

one side needs more time to prepare for trial.” Id. This is true even if the case is

not complex, but just requires additional time to prepare: “[t]hough the

government concedes that this case was not ‘complex’ as that term is defined in

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[the Act], preparation of the factual record here was unusually complicated and

required additional time.” Id.

III. Discussion

This case falls squarely within the definition of a complex matter: the

charges in this case arise out of a long-term investigation involving multiple

federal law enforcement agencies; the investigation included Title III wiretap

interceptions; the discovery is voluminous; eleven defendants are charged in 22

separate counts, including ten defendants who are charged with a racketeering

conspiracy charge that spans over two decades of conduct; and one of the

defendants, MISKE, is facing death-penalty-eligible charges. The volume of

discovery, moreover, has only increased: law enforcement executed search

warrants at five separate locations on July 15, 2020. For these reasons, the case

should be declared complex.

A comparison to prior matters in this District underscores the propriety of

designating this case as complex. In United States v. Patrick Prescott, et al., Cr.

No. 18-00133 LEK, United States District Judge Leslie E. Kobayashi declared the

case complex, and did so over the objection of two defendants. The indictment in

Prescott charged 14 defendants in 13 counts, all of which revolved around a

conspiracy to distribute and possess with intent to distribute methamphetamine

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along with charges of the possession, attempted possession, and distribution of

methamphetamine. In the motion to declare to that case complex, the United

States noted that: (i) the indictment followed a lengthy investigation with wiretaps

occurring over a period of five months, (ii) there would be voluminous discovery,

and (iii) the relationships between the defendants were complex. All of those

considerations apply with even greater force here. Most significantly, the nature of

the charges in this case add a degree of complexity that was not present in

Prescott.

Similarly, in United States v. Arthur Brun, et al., Crim. No. 20-00024-DKW,

Your Honor declared the case complex. The indictment in that matter charged 12

defendants in 13 counts. As was the case in Prescott, the majority of the counts

concerned a drug trafficking conspiracy along with charges of possession,

attempted possession, and distribution of methamphetamine. In addition to those

charges, there were additional counts involving obstruction of justice by witness

tampering, obstruction of justice by evidence tampering, assault of a federal law

enforcement officer, unlawful possession of firearms and ammunition, and a

conspiracy to unlawfully possess firearms and ammunition. The considerations

that weighed in favor of designating the Brun matter complex weigh even more

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strongly in favor of doing so here. As noted above, the charges in this case add a

degree of complexity not present in Brun.

Although two defendants might conceivably oppose the government’s

motion—FREITAS and BUNTENBAH, with whose counsel the government has

not yet had an opportunity to confer—any such opposition would not prevent the

Court from recognizing that this case is complex. As noted above, Judge

Kobayashi designated Prescott complex even over the objection of two defendants.

The same result would be warranted here if any defendants were to object.

Finally, the government requests that the Court extend the deadline for

producing discovery under Criminal Local Rule 16.1(a), and instead authorize the

government to make an initial production of Rule 16 discovery within 30 days after

arraignment (assuming the government’s pending motion for a protective order is

resolved before then), with subsequent productions to be made on a rolling basis

thereafter. This request is supported by good cause because of the voluminous

nature of discovery in this matter, which as noted above, includes voluminous

financial and business documents that contain personal identifying information and

other sensitive data. The government already has redacted substantial amounts of

sensitive and personal identifying information from documents, all of which will

be included in a first Rule 16 production. The government will promptly produce

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additional Rule 16 discovery on a rolling basis as continued redactions of sets of

materials are complete, and as new discovery is obtained and redacted. No

defendant has raised any objection to this request.

IV. Conclusion

In light of the number of defendants and the nature of this prosecution, “the

ends of justice served” by granting this motion “outweigh the best interest of the

public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The

United States respectfully requests that the Court grant this motion, continue trial

for one year, and exclude the resulting period of delay from the date of its Order

until the new trial date for speedy trial purposes under 18 U.S.C. § 3161(h)(7)(A)

and (B). The government further requests that the seven-day deadline under

Criminal Local Rule 16.1(a) be extended to allow the government to make an

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initial Rule 16 production within 30 days of arraignment, with additional Rule 16

productions to be made thereafter on a rolling basis.

DATED: August 4 2020, Honolulu, Hawaii.

Respectfully Submitted,

KENJI M. PRICE
United States Attorney
District of Hawaii

/s/ Michael Nammar

/s/ Micah Smith
/s/ Mark A. Inciong
By
MICHAEL NAMMAR
MICAH SMITH
MARK A. INCIONG
Assistant U.S. Attorneys

Attorneys for Plaintiff

UNITED STATES OF AMERICA

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on the date noted below, the true and correct

copy of the foregoing was served electronically through CM/ECF:

Lynn E. Panagakos, Esq., and Thomas M. Otake, Esq.

Attorneys for Michael J. Miske, Jr. (1)

Gary G. Singh, Esq.

Attorney for John B. Stancil (2)

Donald L. Wilkerson, Esq.

Attorney for Kaulana Freitas (3)

Birney B. Bervar, Esq.

Attorney for Lance L. Bermudez (4)

Clarence M. Virtue, Esq.

Attorney for Dae Han Moon (5)

Cynthia Kagiwada, Esq.

Attorney for Preston M. Kimoto (6)

Gary K. Springstead, Esq.

Attorney for Michael Buntenbah (7)

Mark R. Zenger, Esq. (8)

Attorney for Harry K. Kauhi

Rustam Barbee, Esq.

Attorney for Norman L. Akau, III (9)

Andrew M. Kennedy, Esq.

Attorney for Hunter J. Wilson (10)
Case 1:19-cr-00099-DKW Document 131 Filed 08/04/20 Page 15 of 15 PageID #: 682

Dana S. Ishibashi, Esq.

Attorney for Jarrin K. Young (11)

DATED: Honolulu, Hawaii, August 4, 2020.

/s/ Micah Smith

Micah Smith
Assistant U.S. Attorney
U.S. Attorney’s Office
District of Hawaii