Case 1:22-mc-00008 Document 1 Filed 01/07/22 Page 1 of 16 PageID #: 1

ROBERT BRIAN BLACK 7659

STEPHANIE FRISINGER 11483
Civil Beat Law Center for the Public Interest
700 Bishop Street, Suite 1701
Honolulu, Hawai`i 96813
brian@civilbeatlawcenter.org
Telephone: (808) 531-4000
Facsimile: (808) 380-3580

Attorneys for Civil Beat Law Center

for the Public Interest

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI`I

IN RE: CIVIL BEAT LAW MISC. NO. 22-08

CENTER FOR THE PUBLIC [CR NO. 19-99 (01) DKW-KJM]
INTEREST,
OBJECTION TO DEFENDANT
Objector. MICHAEL J. MISKE, JR.’S
______________________________ MOTION TO FILE EXHIBITS “10”
– “45” TO FIRST MOTION TO
UNITED STATES OF AMERICA, COMPEL DISCOVERY UNDER
SEAL [DKT. 447]
Plaintiff,

vs.

MICHAEL J. MISKE, JR. (01),

Defendant.

OBJECTION TO DEFENDANT MICHAEL J. MISKE, JR.’S MOTION TO

FILE EXHIBITS “10” – “45” TO FIRST MOTION TO COMPEL
DISCOVERY UNDER SEAL [DKT. 447]
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TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................... i

TABLE OF AUTHORITIES ................................................................................ ii

I. THE PUBLIC HAS A PRESUMED CONSTITUTIONAL RIGHT OF

ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS. ......................2

II. THE PUBLIC ALSO HAS A PRESUMED COMMON LAW RIGHT

OF ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS. ................5

III. THE MOTION TO SEAL DOES NOT PROVIDE A BASIS FOR

DENYING ACCESS. ....................................................................................6

CONCLUSION....................................................................................................13
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TABLE OF AUTHORITIES

Cases
Associated Press v. U.S. Dist. Ct., 705 F.2d 1143 (9th Cir. 1983) ........................... 4

Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir. 2016)............. 4

Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)...................... 2, 3, 5, 12

In re N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987)................................................. 12

JG v. Douglas County Sch. Dist., 552 F.3d 786 (9th Cir. 2008) .............................. 7

Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990) .............. 5, 7

Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940 (9th Cir. 1998) .... 5, 7, 12

Press-Enter. Co. v. Superior Ct., 464 U.S. 501 (1984) ........................................ 3, 5

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)............................. 2, 3

United States v. Bus. of the Custer Battlefield Museum & Store, 658 F.3d 1188
(9th Cir. 2011) ....................................................................................................... 6

United States v. Carpenter, 923 F.3d 1172 (9th Cir. 2019)...................................... 4

Statutes
18 U.S.C. § 2518..................................................................................................... 11

ii
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Pursuant to the public right of access guaranteed by the First Amendment of

the United States Constitution and the common law, Civil Beat Law Center for the

Public Interest (Law Center) objects to the motion to seal exhibits by Defendant

Michael J. Miske, Jr. in United States v. Michael J. Miske, Jr., Cr. No. 19-99 (01)

DKW-KJM. Defendant alleges that the Government’s discovery is so deficient

that it violates his “Fifth Amendment right to due process, and his Sixth

Amendment rights . . . .” Dkt. 450-2 at PageID#2946-47.1 In light of these serious

constitutional allegations, the public has a compelling interest in scrutinizing the

basis for Defendant’s assertions to better understand how this Court ultimately

addresses those claims. Defendant purports to justify sealing because disclosure

would reveal previously unknown witnesses. But that justification directly

contradicts Defendant’s arguments in the motion to compel that the redacted

discovery fails to identify witnesses; fails to identify known witnesses—whom

Defendant names in the motion to compel; or is otherwise incomprehensible.

As the Court recognized in the Protective Order, “the party seeking to file a

paper under seal bears the burden of overcoming the presumption in favor of

public access to papers filed in Court.” Dkt. 146 at PageID#783 ¶ 8. Defendant’s

motion to seal has not met that burden here.

1
“Dkt.” refers to the docket number in Cr. No. 19-99 (01) DKW-KJM.
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I. THE PUBLIC HAS A PRESUMED CONSTITUTIONAL RIGHT OF

ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS.

The constitutional right of public access to criminal proceedings is among

those rights that, “while not unambiguously enumerated in the very terms of the

[First] Amendment, are nonetheless necessary to the enjoyment of other First

Amendment rights.” Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 604

(1982). “A major purpose of that Amendment was to protect the free discussion of

governmental affairs.” Id.; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

575 (1980) (plurality opinion) (the freedoms in the First Amendment “share a

common core purpose of assuring freedom of communication on matters relating

to the functioning of government”). Thus, to the extent that the constitution

guarantees a qualified right of public access, “it is to ensure that this

constitutionally protected ‘discussion of governmental affairs’ is an informed one.”

Globe Newspaper, 457 U.S. at 605; Richmond Newspapers, 448 U.S. at 587

(Brennan, J., concurring) (“Implicit in this structural role is not only the principle

that debate on public issues should be uninhibited, robust, and wide-open, but also

the antecedent assumption that valuable public debate—as well as other civic

behavior—must be informed.”).

“By offering such protection, the First Amendment serves to ensure that the

individual citizen can effectively participate in and contribute to our republican

system of self-government.” Globe Newspaper, 457 U.S. at 604. “[T]he public

2
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has an intense need and a deserved right to know about the administration of

justice in general; about the prosecution of local crimes in particular; about the

conduct of the judge, the prosecutor, defense counsel, police officers, other public

servants, and all the actors in the judicial arena; and about the trial itself.”

Richmond Newspapers, 448 U.S. at 604 (Blackmun, J., concurring). “[Openness]

gave assurance that the proceedings were conducted fairly to all concerned, and it

discouraged perjury, the misconduct of participants, and decisions based on secret

bias or partiality.” Id. at 569; accord Press-Enter. Co. v. Superior Ct., 464 U.S.

501, 508 (1984) [Press-Enter. I] (“[T]he sure knowledge that anyone is free to

attend gives assurance that established procedures are being followed and that

deviations will become known.”).

“A result considered untoward may undermine public confidence, and where

the trial has been concealed from public view, an unexpected outcome can cause a

reaction that the system, at best, has failed, and, at worst, has been corrupted.”

Richmond Newspapers, 448 U.S. at 571 (plurality opinion); Globe Newspaper, 457

U.S. at 606 (“[P]ublic access to the criminal trial fosters an appearance of fairness,

thereby heightening public respect for the judicial process.”); Press-Enter. I, 464

U.S. at 508 (“Openness thus enhances both the basic fairness of the criminal trial

and the appearance of fairness so essential to public confidence in the system.”).

“People in an open society do not demand infallibility from their institutions, but it

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is difficult for them to accept what they are prohibited from observing.” Richmond

Newspapers, 448 U.S. at 572 (plurality opinion).

The same First Amendment standards for closing courtroom proceedings

apply to sealing documents for criminal pretrial proceedings.2 E.g., Associated

Press v. U.S. Dist. Ct., 705 F.2d 1143, 1145 (9th Cir. 1983). As the Ninth Circuit

has observed:

There is no reason to distinguish between pretrial proceedings and the

documents filed in regard to them. Indeed, the two principal
justifications for the first amendment right of access to criminal
proceedings apply, in general, to pretrial documents. Those two
justifications are: “first, the criminal trial historically has been open
to the press and general public,” and “second, the right of access to
criminal trials plays a particularly significant role in the functioning of
the judicial process and the government as a whole.” There can be
little dispute that the press and public have historically had a common
law right of access to most pretrial documents — though not to some,
such as transcripts of grand jury proceedings. . . . We thus find that
the public and press have a first amendment right of access to pretrial
documents in general.

Id. (citations omitted).

2
Cases addressing public access to civil discovery are inapposite here. See Ctr. for
Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016) (for civil
cases, “public access will turn on whether the motion is more than tangentially
related to the merits of the case”). Criminal pretrial proceedings are distinguished
by the overriding public concern for the proper administration of the criminal
justice system and public scrutiny to preserve constitutional rights before a citizen
is denied liberty. The Ninth Circuit has not overruled Associated Press. E.g.,
United States v. Carpenter, 923 F.3d 1172, 1179 (9th Cir. 2019). In any event, in
light of the constitutional defects alleged by Defendant in the motion to compel,
the Center for Auto Safety standard is met because Defendant’s due process rights
to discovery are more than tangentially related to just prosecution of a citizen.

4
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To preserve the societal values reflected in the First Amendment, the U.S.

Supreme Court held that “[c]losed proceedings, although not absolutely precluded,

must be rare and only for cause shown that outweighs the value of openness.”

Press-Enter. I, 464 U.S. at 509. “The presumption of openness may be overcome

only by an overriding interest based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that interest.” Id. at 510; accord

Globe Newspaper, 457 U.S. at 606-07.

When the First Amendment right of access applies, public access is

presumed. Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1466-67 (9th

Cir. 1990). “It is the burden of the party seeking closure . . . to present facts

supporting closure and to demonstrate that available alternatives will not protect

his rights.” Id. at 1467. The movant thus has the burden to prove that:

“(1) closure serves a compelling interest; (2) there is a substantial probability that,

in the absence of closure, this compelling interest would be harmed; and (3) there

are no alternatives to closure that would adequately protect the compelling

interest.” Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949 (9th Cir.

1998). The findings may not be based on “conclusory assertions.” Id.

II. THE PUBLIC ALSO HAS A PRESUMED COMMON LAW RIGHT

OF ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS.

The Ninth Circuit has recognized a few judicially filed criminal records that

are not subject to the common law right of access “because the records have

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traditionally been kept secret for important policy reasons.” United States v. Bus.

of the Custer Battlefield Museum & Store, 658 F.3d 1188, 1192 (9th Cir. 2011).

Those categorically exempt records include grand jury transcripts and warrant

materials during pre-indictment investigation. Id. For all other judicial records, “a

strong presumption in favor of access is the starting point.” Id. at 1194.

For the common law analysis, the “party seeking to seal a judicial record

then bears the burden of overcoming this strong presumption by . . . articulating

compelling reasons . . . that outweigh the general history of access and the public

policies favoring disclosure.” Id. at 1194-95. A court presented with a motion to

seal must balance the competing interests and “base its decision on a compelling

reason and articulate the factual basis for its ruling, without relying on hypothesis

or conjecture.” Id. at 1195. “[T]he court may not restrict access to the documents

without articulating both a compelling reason and a factual basis for its ruling.” Id.

at 1196.

III. THE MOTION TO SEAL DOES NOT PROVIDE A BASIS FOR

DENYING ACCESS.

Defendant argues that sealing the entirety of Exhibits 10-45 to his motion to

compel discovery is necessary to protect the “identities and privacy of possible

witnesses.” Dkt. 447-1 at PageID#2926. On its face, that bare assertion does not

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provide a specific factual basis to justify sealing.3 E.g., Phoenix Newspapers, 156

F.3d at 950 (generalized concern about compromising ongoing investigation and

jeopardizing security of jurors insufficient to justify sealing transcripts); Oregonian

Publ’g, 920 F.2d at 1467 (general concerns that disclosure “would pose a risk of

harm to Wolsky and his family” insufficient to justify sealing plea agreement).

Defendant’s motion to seal should be denied.4

The argument that disclosure of these Exhibits would compromise potential

witnesses also is contradicted by Defendant’s Motion to Compel. That motion

3
As to one particular document at issue, Exhibit 17—see Dkt. 450-2 at
PageID#:2968-72—the Law Center previously moved to unseal that document and
others in the underlying “Painkiller” proceeding. Misc. No. 20-343 LEK-WRP.
Judge Kobayashi rejected the Government’s cursory assertions that disclosure of
the related records would interfere with an ongoing criminal proceeding. 20-MC-
343 Dkt. 6 at PageID#:32 (“The Government, other than a general statement about
an on-going investigation, provides no basis for continuing to have the court
records sealed.”). However, after subsequent search, the court determined that the
Government’s ex parte letter (Exhibit 17) had never been filed, so there was
nothing available in the court record to unseal. Id. Dkt. 9 at PageID#:40.
4
To the extent that a Government submission or Defendant’s reply proffers
additional arguments or evidence to justify sealing, the current motion should be
denied without prejudice. E.g., JG v. Douglas County Sch. Dist., 552 F.3d 786,
803 n.14 (9th Cir. 2008) (court must either disregard “new evidence” submitted on
reply or provide an opportunity to respond). The parties then can file a properly
supported motion to seal—to which members of the public can respond. Phoenix
Newspapers, 156 F.3d at 951 (“The procedural and substantive safeguards
described in Oregonian and Brooklier are not mere punctilios, to be observed when
convenient. . . . All too often, parties to the litigation are either indifferent or
antipathetic to disclosure requests. . . . Thus, providing the public notice and an
opportunity to be heard ensures that the trial court will have a true opportunity to
weigh the legitimate concerns of all those affected by a closure decision.”).

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focuses on the Government’s heavy redactions, which Defendant claims make it

impossible to identify witnesses or make the documents generally

incomprehensible.

• “The names of most of the witnesses interviewed are redacted. The names
of people about whom the witnesses have provided information are
frequently redacted. Much of the substance of the information provided by
the unidentified witnesses is redacted. The names of alleged conspirators
and alleged members and associates of the so-called ‘Miske enterprise’ are
redacted. Information about criminal activity committed by alleged
enterprise members turned Government witnesses is redacted. Even the
applications for search warrants and Title IIIs are redacted. The
Government’s excessive redactions of clearly discoverable and exculpatory
information makes the documents produced very hard to understand and
organize.” Dkt. 450-2 at PageID#:2951.

• “Material discoverable information contained in these affidavits which has

been concealed through redactions includes . . . identities of [Defendant’s]
alleged co-conspirators . . . identities of [co-conspirators’] criminal
co-participants . . . identities of other parties to these text message
conversations . . . [and] identities and initials of material witnesses.” Id. at
PageID#:2965.

• “For example, EX 13, BS 45234-36, ¶¶ 12-13, standing alone, is

incomprehensible.” Id. at PageID#:2966.

• “There are thousands of documents which the Government has rendered

incomprehensible or materially incomplete through irrational and
unjustifiable redactions. . . . Moreover, there are also thousands of instances
where Miske has been unable to garner information sufficient to enable him
to decipher, or even to guess, the hidden content.” Id. at PageID#:2967 n.21.

• “Names of subscribers and users of target telephones, and information about

such subscribers and users, are redacted. Names of target subjects are
redacted. Names of alleged co-conspirators in the alleged drug conspiracy
and the alleged RICO conspiracy are redacted. Locations and the identity of
participants in alleged drug transactions and other alleged offenses described
in the applications are redacted. The names and owners of vehicles

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allegedly used in criminal offenses are redacted. Names of witnesses to

alleged criminal activities are redacted. Substantive information supplied by
witnesses is redacted. Names of individuals who were parties to intercepted
calls and text messages are redacted. The content of intercepted calls and
texts is redacted. The users and subscribers for target telephones from prior
applications where Miske was listed as a target subject are redacted.” Id. at
PageID#:2973-74.

• “Most of the FBI 302s and other law enforcement agencies’ reports of
witness interviews are heavily redacted. Many reports are so heavily
redacted they are barely comprehensible, and some are not comprehensible
at all.” Id. at PageID#:2981.

• “For the most part, witness identities are redacted . . . . Much of the
substantive information provided by witnesses is redacted . . . . As a result,
Miske has been left guessing as to the identities of hundreds of witnesses
whose names are redacted from the reports, and even as to which reports are
interviews of the same witness.” Id. at PageID#:2981-82.

• “The identities and contact information for all five witnesses who made
these reports are redacted. . . . The names of these additional witnesses are
redacted.” Id. at PageID#:2983.

• “SOI-13’s identity is disclosed in HSI SA Chu’s reports, but is concealed

from Miske through redactions.” Id. at PageID#:2985.

• “SOI-14’s identity is disclosed in the unredacted versions of EX 29 and EX

30, but the Government has concealed the identity of this witness from
Miske through redactions.” Id. at PageID#:2986.

• “By concealing the identities of the reporting witness and the two
individuals whom he implicated, the Government is concealing evidence
. . . .” Id. at PageID#:2986-87.

• “In addition to concealing the identities of the reporting witness and

Redacted Solicitor, the Government’s redactions in EX 34 are also
concealing additional information, including the identities of additional
witnesses (e.g., EX 34, BS 46176), locations (e.g., EX 34, BS 46175), and
substantive information (e.g., EX 34, BS 46177-78).” Id. at PageID#2987.

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• “Lodged herewith as EX 35 is a report of a February 14, 2019 interview of a

witness whose identity is redacted . . . .” Id. at PageID#:2988.

• “Lodged herewith as EX 36 is a report of a March 14, 2019 interview of a

witness whose identity is redacted . . . .” Id. at PageID#:2990.

• “Due to the Government’s excessive redactions, Miske has been forced to

embark on a ‘guess the redactions’ game, just to try to gain some
rudimentary understanding and organization of the discovery, so that he
could present these issues to the Court to seek relief.” Id. at PageID#:2992
n.33.

• “Lodged herewith as EX 37 is a report of an interview of a witness, identity

redacted, date of interview redacted, almost all information reported
redacted.” Id. at PageID#:2994.

• “The prejudice from these redactions is compounded by the Government’s

redactions in EX 43, which is a report of an interview of a redacted witness
who worked for Makana Pacific.” Id. at PageID#:2998-99.

If the Government already redacted these documents to protect the identity of

witnesses and its investigatory interests, there is no basis to withhold the

documents from the public. The extent of redactions to the documents is critical to

inform the public as to how the Government complies with its discovery

obligations and, once this Court rules on the motion to compel, whether the

Government’s redactions are consistent with Defendant’s constitutional rights.5

5
The Law Center’s objection concerns the Exhibits to Defendant’s motion to
compel, not any discovery or less redacted versions that this Court may order
disclosed to Defendant if the motion is granted. The public cannot adequately
comprehend the context for Defendant’s motion or this Court’s resolution of that
motion without access to the documents that purportedly justify Defendant’s claim
that the Government failed to comply with its constitutional obligations.

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Notwithstanding the heavy redactions, Defendant argues that disclosure

would lead to “speculation” by the public as to the identity of potential witnesses.

Dkt. 447-1 at PageID#:2926. But Defendant then speculates openly about the

identity of redacted witnesses throughout the motion to compel.

• “To the extent these redactions conceal the identities of, and information
provided by, Wayne Miller, Jacob Smith and Lindsey Kinney, there is no
justification to do so.” Dkt. 450-2 at PageID#:2964.

• “Based on the location of the redactions (EX 17, p.10-12), they appear to
conceal information about ‘CW 5,’ who appears to be Wayne Miller . . . .”
Id. at PageID#:2970.

• “Redacted, guessed to be Miller . . . .” Id. at PageID#:2971 n.22.

• “If Miske guessed correctly, then EX 36 Redacted Someone #A and

Redacted Someone #1, EX 34 Redacted Solicitor, and EX 35 Redacted
Abductor, are all the same person, and that person is cooperating
Government witness Jacob Smith.” Id. at PageID#:2992 n.33.

• “In addition, if Miske has guessed correctly, then Redacted Someone #B is

James Borling-Salas.” Id. at PageID#:2993 n.33 cont’d.

• “Lodged herewith as EX 39-41 are reports of interviews of a redacted

witness who appears to be Castro.” Id. at PageID#:2997.

Defendant’s speculation about public speculation does not provide a specific

factual basis to justify sealing.

With respect to Exhibits 21-26 only, Defendant relies on 18 U.S.C.

§ 2518(8)(b). Section 2518 requires confidentiality for applications and orders for

Title III wiretaps filed as miscellaneous dockets, subject to a good cause standard

for disclosure. 18 U.S.C. § 2518(8)(b). But that confidentiality does not extend to

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the applications and orders when filed as an attachment to an otherwise public

document. In re N.Y. Times Co., 828 F.2d 110, 115 & n.1 (2d Cir. 1987) [New

York Times] (“appellants are not seeking access to Title III applications and orders

as such, but merely Title III material to the extent it is contained in the motion

papers filed with the court.”). As the Second Circuit observed, “where a qualified

First Amendment right of access exists, it is not enough to simply cite Title III.

Obviously, a statute cannot override a constitutional right.” Id.; accord Globe

Newspaper Co. v. Superior Ct., 457 U.S. 596, 607-11 (1982) (state statute

unconstitutional for mandating that all trial testimony by minor victims of sex

crimes be closed to the public).

As recognized in New York Times and potentially relevant here, there may

be privacy interests for individuals whose communications were intercepted as part

of the Title III wiretaps. Id. at 116. The solution, however, is “limited redaction,”

not “wholesale sealing of the papers.” Id. Redaction is a clear alternative to

closure that would adequately protect whatever compelling interest exists.6

Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949 (9th Cir. 1998).

6
If the Court orders additional redactions, Defendant and/or the Government
should be required to identify with specificity in a public filing where in the
documents additional redactions have been made. The extent of the Government’s
original redactions in the disclosures to Defendant is a critical aspect of the public
concern in these Exhibits. Thus, the public must have some method to distinguish
the Government’s original redactions from those ordered by the Court.

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CONCLUSION

Based on the foregoing, the Law Center respectfully requests that the Court

deny Defendant Miske’s motion to seal [Dkt. 447].

DATED: Honolulu, Hawai`i, January 7, 2022

/s/ Robert Brian Black

ROBERT BRIAN BLACK
STEPHANIE FRISINGER
Attorneys for Civil Beat Law Center
for the Public Interest

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI`I

IN RE: CIVIL BEAT LAW CENTER MISC. NO. 22-08

FOR THE PUBLIC INTEREST, [CR NO. 19-99 (01) DKW-KJM]

Objector. CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that, on the dates and by the methods of service noted below

a true and correct copy of the foregoing will be served on the following at their last

known addresses:

Served Electronically:

Lynn E. Panagakos lynnpanagakos@yahoo.com Jan. 7, 2022

Michael N. Burt mb@michaelburtlaw.com Jan. 7, 2022
Thomas M. Otake thomas@otakelaw.com Jan. 7, 2022
Michael D. Nammar michael.nammar@usdoj.gov Jan. 7, 2022
Micah W. J. Smith micah.smith@usdoj.gov Jan. 7, 2022
Mark A. Inciong mark.inciong@usdoj.gov Jan. 7, 2022
Marion Percell marion.percell@usdoj.gov Jan. 7, 2022
Craig S. Nolan craig.nolan@usdoj.gov Jan. 7, 2022

DATED: Honolulu, Hawai`i, Jan. 7, 2022

/s/ Robert Brian Black

ROBERT BRIAN BLACK
Attorney for Objector Civil Beat Law Center for
the Public Interest