Case 1:19-cr-00099-DKW-KJM Document 727 Filed 01/13/23 Page 1 of 5 PageID.

4922

THOMAS M. OTAKE 7622

ATTORNEY AT LAW
841 Bishop Street; Suite 2201
Honolulu, Hawaii 96813
Telephone: (808) 523-3325
Facsimile: (808) 599-1645
e-mail: thomas@otakelaw.com

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

)
Plaintiff, ) THOMAS M. OTAKE’S MOTION
) TO WITHDRAW AS COUNSEL:
v. ) DECLARATION OF COUNSEL;
) CERTIFICATE OF SERVICE
MICHAEL MISKE, )
)
Defendant. )
________________________________ )

THOMAS M. OTAKE’S MOTION TO WITHDRAW AS COUNSEL

COMES NOW, Thomas M. Otake and moves this Court for an order

granting this Motion to Withdraw as Counsel for Michael Miske. This motion is

based on the attached Declaration of Counsel, the records and files in this case, and

any and all evidence and argument presented at the hearing on this Motion.

DATED: Honolulu, Hawaii, January 13, 2023

/S/ THOMAS M. OTAKE

THOMAS M. OTAKE
Case 1:19-cr-00099-DKW-KJM Document 727 Filed 01/13/23 Page 2 of 5 PageID.4923

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

)
Plaintiff, ) DECLARATION OF COUNSEL
)
v. )
)
MICHAEL MISKE, )
)
Defendant. )
_______________________________

DECLARATION OF COUNSEL

I, THOMAS M. OTAKE, hereby declare as follows:

1. Ms. Lynn Panagakos and I made our appearance in this case as private
counsel for Mr. Miske on July 16, 2020, the date of the initial arraignment
and plea.

2. Since then, for the last two and half years, Ms. Panagakos and I have spent
countless hours working on this extremely complex case.

3. Recognizing that the complexity, scope, and enormous amount of discovery

in this case required additional help, Mr. Michael Kennedy made his
appearance as a third attorney for Mr. Miske on November 17, 2022.

4. The intention was for Mr. Kennedy, Ms. Panagakos, and myself to represent
Mr. Miske in his trial currently set for April 17, 2023.

5. On December 8, 2022, the Government filed a Third Superseding Indictment

in this case.

2
Case 1:19-cr-00099-DKW-KJM Document 727 Filed 01/13/23 Page 3 of 5 PageID.4924

6. The Third Superseding Indictment added two counts of Obstruction of

Justice (18 U.S.C. 1512(c)(2)) against Mr. Miske. These two counts are
reflected in the Third Superseding Indictment as Counts 21 and 22.

7. Counts 21 and 22 allege that Mr. Miske caused Ms. Panagakos and myself
to unknowingly submit two fraudulent character letters to the Court
connected to a request for pretrial release.

8. Since the filing of the Third Superseding Indictment, the Government has
informed Ms. Panagakos and myself that it views both of us as possible
witnesses related to Counts 21 and 22, and that a conflict of interests exists.

9. In the last week, the Government informed Ms. Panagakos and myself that it
planned to file a Motion to Disqualify both of us based on the potential
conflict of interest related to Counts 21 and 22, unless we voluntarily
withdrew from the case.

10. Considering the extreme prejudice to Mr. Miske that would flow from losing
the two attorneys who have been working on his case for two and half years,
the effect such a result would have on judicial economy and other co-
defendants in custody, and the considerable expense that would flow from
new counsel having to essentially start over (including expenses covered by
the CJA budget), Ms. Panagakos and I were reluctant to voluntarily
withdraw from the case based on the issues raised by Counts 21 and 22.

11. This reluctancy was also based on the fact that less extreme cures exist to
any potential conflict issue raised by the addition of Counts 21 and 22 to the
case.

12. Based on the information of which we are currently aware, Ms. Panagakos
and I do not believe that any potential conflict issue arising from the
addition of Counts 21 and 22 is unresolvable or unwaiveable, such that it
would be sufficient to warrant depriving Mr. Miske of his fundamental Sixth
Amendment right to counsel of choice, counsel who have been representing
Mr. Miske for years.
Case 1:19-cr-00099-DKW-KJM Document 727 Filed 01/13/23 Page 4 of 5 PageID.4925

13. Mr. Miske as well has expressed an intent to waive any potential conflict
issues associated with Ms. Panagakos and I continuing to represent him
following the addition of Counts 21 and 22 to the case.

14. However, on January 12, 2023, the Government for the first time shared
information with me about a different issue that they believe creates an
unresolvable conflict of interest for me.

15. This newly raised issue is completely unrelated to the factual allegations
contained in Counts 21 and 22. This newly raised issue is also specific to
me, and does not affect Ms. Panagakos.

16. After learning of, and analyzing, the newly disclosed information, I do
believe this information creates a genuine conflict of interest that obliges me
to withdraw from representation of Mr. Miske.

17. For a variety of reasons, I do not believe it appropriate to share specifics

about this issue in a public filing. However, if the Court so requires, I would
be willing to share more information about this new issue during a sealed
proceeding.

18. Based on the above, I file this Motion to Withdraw as Counsel.

19. I believe that Mr. Kennedy and Ms. Panagakos together can more than
adequately represent Mr. Miske in my absence. Mr. Kennedy has a wealth
of experience handling alleged racketeering cases of this magnitude. More
importantly, Ms. Panagakos, much more than I have, has developed a
command and understanding of the enormous amount of discovery in this
case over the last two and half years. Her knowledge of the case is truly
irreplaceable.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS

TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF.

DATED: HONOLULU HAWAII, January 13, 2023

/S/ THOMAS M. OTAKE

THOMAS M. OTAKE
Case 1:19-cr-00099-DKW-KJM Document 727 Filed 01/13/23 Page 5 of 5 PageID.4926

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

)
Plaintiff, )
) CERTIFICATE OF SERVICE
v. )
)
MICHAEL MISKE, )
)
Defendant. )
________________________________ )

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing document will be duly

served to the following party(ies) via electronic delivery on October 19, 2021

TO: OFFICE OF THE UNITED STATES ATTORNEY

MICHAL NAMMAR
MICAH SMITH
MARK INCIONG
PJKK Federal Building - SUITE 6-100
300 Ala Moana Boulevard
Honolulu, Hawaii 96850

DATED: Honolulu, Hawaii January 13, 2023.

/S/ THOMAS M. OTAKE

THOMAS M. OTAKE