Order Granting Motion To Unseal Plea Agreement
Order Granting Motion To Unseal Plea Agreement
SEALED
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racketeering laws of the United States. See Cr. Dkt. Nos. 3, 249.1 At the plea
hearing, Akau’s counsel requested that the plea agreement be filed under seal, and,
upon no objection by the Government, the Court consented. Id.; see Memorandum
On July 23, 2021, third-party Civil Beat Law Center for the Public Interest
(“Civil Beat”) filed a motion to unseal the Agreement, citing its interest in the
Miske case and its constitutional right of access to criminal proceedings. Misc.
Dkt. No. 1. In opposition, Akau asserts that disclosure will harm certain
compelling interests that override the public’s right of access—namely, his own
personal safety and the success of the Government’s ongoing investigation. Misc.
1
In this Order, “Misc. Dkt.” will refer to the docket for the instant closure case, In re: Civil Beat
Law Center, Misc. Case No. 21-00298-DKW-KJM. “Cr. Dkt.” will refer to the docket for the
underlying criminal case, United States v. Akau, Cr. Case No. 19-00099-09-DKW-KJM.
1
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Dkt. No. 8. At oral argument on September 23, 2021, the Government confirmed
The Court GRANTS Civil Beat’s motion and orders the Agreement
unsealed, as specified below. Akau’s arguments are just that – argument without
to his asserted interests. The Court stays the effective date of this Order through
October 19, 2021, in order to afford Akau an opportunity to seek relief at the Ninth
Circuit.
RELEVANT BACKGROUND
Miske. The Government claims that Miske used his power over members, his
reputation for violence in the community, and his various corporate entities to
enrich the members and associates of the Miske Enterprise and perpetrate their
7/15/21 Second Superseding Indictment, Cr. Dkt. No. 272 (the “Indictments”).
In the last three years, the Government has brought at least six cases against
at least eighteen defendants in the District of Hawaii 2 for their alleged involvement
2
See United States v. Ashlin Akau, Cr. Case No. 21-00016; United States v. Wayne Miller, Cr.
Case No. 20-00113; United States v. Jacob Smith, Cr. Case No. 20-00086; United States v.
Timothy Taboada, Cr. Case No. 19-00147; United States v. Jonah Ortiz, Cr. Case No. 19-00141;
2
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In Counts 1, 16, 17, 18, and 19 of the 6/18/20 Superseding Indictment, Akau
substances in violation of 21 U.S.C. § 846, carrying and using a firearm during and
Hobbs Act Robbery in violation of 18 U.S.C. § 1951, and carrying and using a
§ 924(c)(1)(A)(ii). Cr. Dkt. No. 3. On July 17, 2020, Akau pled not guilty to these
charges. Cr. Dkt. No. 49. On June 9, 2021, he entered into a plea agreement with
the Government in which he pled guilty to Count 1 in return for the Government’s
promise to move to dismiss the remaining charges after sentencing. Cr. Dkt. Nos.
249, 250.
At his Change of Plea Hearing, Akau’s counsel verbally requested that the
Agreement be filed under seal. Cr. Dkt. No. 249. Upon no objection by the
and United States v. Miske, et al., Cr. Case No. 19-00099 (involving thirteen defendants, one of
whom is Akau).
3
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On July 23, 2021, Civil Beat, an entity with a significant on-line media
presence, filed a motion to unseal the Agreement, arguing that the public has a
First Amendment right of access to the records of criminal proceedings that can
The Court directed the parties to submit briefing on the motion and set oral
argument for September 23, 2021. Misc. Dkt. No. 6. On September 1, Akau filed
endanger his and his family’s safety and would compromise the Government’s
“cooperat[ion] with authorities.” Misc. Dkt. No. 8 at 3–4. Akau’s counsel also
attached his own Declaration asserting his “opinion” that unsealing the Agreement
would subject Akau to the risk of “attack [or] injury” and could “be used as a basis
to put a green light on him (kill order).”3 Id. at 6. The only factual support
provided for defense counsel’s claims was that Akau’s offense “involved a high-
3
Akau’s Memorandum in Opposition, along with counsel’s Declaration, were filed in partially
redacted form. See Misc. Dkt. No. 8. Akau did not follow Local Rule 5.2(c) by filing a public,
written motion to seal these portions of his Opposition. Nevertheless, “[t]o avoid further
prolonging this dispute,” Civil Beat did not object to the redactions. Misc. Dkt. No. 9 at 5 n. 5.
4
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override the public’s right of access. See generally Misc. Dkt. No. 9.
The Court heard oral argument on this matter on September 23, 2021. Misc.
Dkt. No. 10. During the hearing, Akau’s counsel re-asserted concerns about
Akau’s safety, pointing out that Akau is currently in pretrial custody in the same
facility as some of his co-defendants. Id. Defense counsel also stated that there
has been some on-line “harassment” of Akau by unidentified sources, and he stated
his belief that it is typical practice among federal district courts to seal plea
cooperation. Id. The Government, which was also represented at the September
LEGAL STANDARD
proceedings. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 604 (1982).
This right is “essential to public confidence in the criminal justice system.” Press-
Enter. Co. v. Superior Ct., 464 U.S. 501, 501 (1984). “Closed proceedings,
although not absolutely precluded, must be rare and only for cause shown that
The First Amendment right of access does not end at the courtroom doors
5
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Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1465–66 (9th Cir. 1990) (holding that
the right applies to plea agreements, which, “in many respects, . . . take[] the place
of the criminal trial” today). The right also specifically extends to transcripts of
agreements that provide the requisite factual predicate for the guilty plea. 4 In re
Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008).
values and is narrowly tailored to serve that interest.” Press-Enter. Co., 464 U.S.
at 510. It is the burden of the party seeking closure to present facts that show: “(1)
the absence of closure, this compelling interest would be harmed; and (3) there are
Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949 (9th Cir. 1998).5
4
Guilty pleas must always be accompanied by credible factual corroboration. Fed. R. Crim. P.
11(b)(3).
5
Akau argues that Oregonian and Phoenix Newspapers do not apply here because they involved
petitions for mandamus, rather than motions before trial courts. This procedural difference is
irrelevant. Petitions for mandamus are simply the proper mode by which a party appeals a trial
court’s closure/sealing decision.
6
Along with these substantive requirements, the Ninth Circuit has also outlined procedural
requirements for closure. Oregonian, 920 F.2d at 1466 (“(1) [T]hose excluded from the
6
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If the court determines at any time that any document has been improperly
sealed or no longer needs to be sealed, it may order its unsealing or take other
DISCUSSION
To keep the Agreement sealed, Akau must point to specific facts showing
(1) there is a substantial likelihood that disclosure will harm a compelling interest,
and (2) there are no available alternatives to closure that will adequately protect
that interest. See Oregonian, 920 F.2d at 1466; Phoenix Newspapers, 156 F.3d at
949.
Agreement could jeopardize both his safety and the Government’s ongoing
compelling and could override the public’s constitutional right of access. But
speculative jeopardy is not enough. Further, the Government has not asserted that
proceeding must be afforded a reasonable opportunity to state their objections; and (2) the
reasons supporting closure must be articulated in findings.”). Accordingly, Local Rule 5.2(c)
requires that a motion to seal a document must be filed in the public record, provide the factual
basis for sealing, and explain how the standard for sealing has been met. Anyone may oppose
the motion to seal within seven days, and if the court denies the motion to seal, the movant may
then notify the court whether it wants to withdraw the document or have it filed publicly. LR
5.2(c). Civil Beat argues that neither the substantive nor the procedural requirements to closure
were met in this case. Misc. Dkt. Nos. 1 at 7; 9 at 4–5. Since the procedural requirements are
being satisfied now, the question before the Court turns only on the substantive requirements.
7
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A. The fact that the Agreement was initially sealed does not bar
reconsideration of that status.
Akau first argues that since “the Judge ordered the plea agreement sealed
and the motion was unopposed,” it should stay sealed. Misc. Dkt. No. 8 at 3. This
is simply not correct. There is no presumption that, once sealed, a document must
remain so. Rather, the Court may order disclosure of a document any time it
LR 5.2(e); see also Oregonian, 920 F.2d at 1465 (prior closure not a factor);
Nor is it relevant that the Government did not object to closure. Cr. Dkt. No.
249. The Government also did not object to disclosure. Misc. Dkt. No. 10. “All
too often, parties to the litigation are either indifferent or antipathetic to disclosure
others.” Phoenix Newspapers, 156 F.3d at 951. Neither the Court’s initial
decision to seal nor the Government’s indifference affects this analysis. See id.
B. Akau has not shown that disclosure is likely to jeopardize his safety.
Akau next argues that disclosure will endanger his family and himself
because the Agreement reflects his cooperation with the Government. Misc. Dkt.
8
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interest in some cases. See, e.g., United States v. Doe, 870 F.3d 991, 1000 (9th
Cir. 2017) (holding that a substantiated safety risk was a compelling interest that
overcame the public’s right of access). But the record must reveal a substantial
probability that disclosure will harm that interest. See, e.g., Phoenix Newspapers,
156 F.3d at 949–50 (holding that a purported safety risk did not justify closure
because the facts did not show “the necessary connection between unsealing [the
document at issue] and inflicting irreparable damage upon the security concerns”).
In Oregonian, the Ninth Circuit held that a district court erred by sealing a
defendant’s plea agreement out of safety concerns that arose solely because the
920 F.2d at 1467. The district court had based its decision on just two things: (1)
the defendant’s own assertion that disclosure of the details of his cooperation
would create a safety risk, and (2) a letter from the defendant’s attorney making a
similar assertion. Id. After noting that the district court’s concern for the
defendant’s safety was “not supported by any factual finding,” but was only based
on the defendant’s and defense counsel’s own conclusions, the Ninth Circuit held
that this was not enough to show a substantial probability of harm. Id.; see also
Phoenix Newspapers, 156 F.3d at 943–44, 950 (holding that a district court erred
by sealing a hearing transcript because, “[s]imply put, there was no evidence in the
9
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safety”).
In contrast, in United States v. Doe, 870 F.3d 991, 999–1000 (9th Cir. 2017),
the Ninth Circuit held that a district court had erred by not sealing a particular
document where (1) that document described the defendant Doe’s substantial
members of a wealthy international drug cartel—and where (2) specific facts in the
record showed that disclosure was likely to endanger the defendant and his family.
The document in question was a U.S.S.G. § 5K1.1 filing, which allows the
at least one of whom was subsequently arrested. Doe, 870 F.3d at 994. “[A]gents
prosecutions against real people,” and the Government “confirmed that almost all
of Doe’s information was accurate, that he had provided information about people
in and out of custody, and that agents believed future arrests based on this
information remained possible.” Id. at 998, 1000. “The government found the
10
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information so useful that it filed a motion to reduce Doe’s sentence by five levels
district court in which it stated that the risk of retaliation or harm to Doe was,
“perhaps, greater than in some other circumstances,” both because of the nature
and amount of detailed information he had provided and because of other specific
facts:
Id. at 994, 998–99. During one drug-related border crossing, Doe’s three-year old
daughter had accompanied him. Id. at 995. And there was credible evidence that a
member of the cartel had told Doe, “Don’t play us dirty because we know where
your family is.” Id. at 999. Because of the unusual magnitude of Doe’s
cooperation and these specific facts showing he was at “heightened” risk, id. at
998, the Ninth Circuit found that the safety risk was compelling and substantiated
and that the § 5K1.1 filing—along with any document referring to its existence—
Akau presents a much less compelling case for sealing than Doe or even
attestation from Akau himself. The record includes only defense counsel’s
conclusory assertions that disclosure of the plea agreement would endanger Akau
and his family because it contemplated his cooperation with the Government, a
level of factual support that the Ninth Circuit held was wholly insufficient in
Oregonian. See 920 F.2d at 1466–67; Misc. Dkt. Nos. 8, 10. Defense counsel’s
subject Akau to the risk of “attack [or] injury” and could “be used as a basis to put
a green light on him (kill order)” is perhaps more colorful than the language relied
Beyond these bare assertions, Akau’s best factual justification for his safety
still falls far short. See Misc. Dkt. No. 8 at 4. The Court acknowledges that, in a
serious, violent crimes, there may be risk to any defendant who cooperates with
12
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defendants. 7 See Doe, 870 F.3d at 999. The Court also acknowledges that “actual
that this case involves numerous defendants and allegations and admissions of
violent crime, and that Akau has made vague claims of on-line “harassment” since
he publicly announced his guilty plea. Misc. Dkt. No. 10; Cr. Dkt. No. 249.
crime.8 On the contrary, the Ninth Circuit has explicitly held that the public’s First
Copley Press, 518 F.3d at 1028 (holding the right extends to plea colloquies and
7
See Fed. Judicial Ctr., Survey of Harm to Cooperators (Feb. 12, 2016),
https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report (“CCACM Report”);
Doe, 870 F.3d at 999 (“The CCACM Report . . . sheds considerable light on the dangers faced by
those who agree to cooperate with government investigations. The report summarizes the results
of a 2015 national survey of district judges, U.S. attorneys, federal defenders, and others
involved in the criminal justice system. District judges reported 571 instances of harm or threats,
either physical or economic, to defendants and witnesses between the spring of 2012 and the
spring of 2015. CCACM Report at 2. This included 31 murders of defendant
cooperators. Id. District judges also reported 363 instances of court records being used to
identify cooperators. Id. The report cautions: ‘This is a particular problem in our prisons, where
new inmates are routinely required by other inmates to produce dockets or case documents in
order to prove whether or not they cooperated. If the new inmates refuse to produce the
documents, they are punished.’ Id.”).
8
Akau’s counsel suggested that it is “standard operating procedure” (“SOP”) for district courts to
seal plea agreements prior to trial to protect pleading defendants. Misc. Dkt. Nos. 8 at 5; 10
(arguing the same during the September 23 hearing). Where that purported SOP comes from is
not clear. What is clear is that that is not the law of this Circuit.
13
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this right of access is a high one. Akau must point to facts in the record which
Agreement. See Phoenix Newspapers, 156 F.3d at 949. He has not done this.
that creates a Doe-like compelling reason to seal. The § 5K1.1 filing in Doe, as is
applicable guideline range recommended by the Government. See 870 F.3d at 994.
contains no such detail. See Cr. Dkt. No. 250 at 18–21. There is no description of
what Akau has done, and, indeed, there is no representation that he has thus far
cooperated at all. At best, the facts mentioned in his plea colloquy reference seven
co-defendants,9 all of whom have already been indicted for the activities Akau
describes, three of whom have accepted plea agreements themselves,10 and all of
which the defense does not seek to seal. See Cr. Dkt. Nos. 3, 272, 250; Misc. Dkt.
No. 8.
9
The defendants Akau mentions are Michael J. Miske, Jr., Wayne Miller, Jacob Smith, Ashlin
Akau, Harry Kauhi, Lance Bermudez, and John B. Stancil. Cr. Dkt. No. 250.
10
See United States v. Ashlin Akau, Cr. Case No. 21-00016, Dkt. No. 14; United States v. Wayne
Miller, Cr. Case No. 20-00113, Dkt. No. 31; United States v. Jacob Smith, Cr. Case No. 20-
00086, Dkt. No. 52.
14
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It is worth noting that the plea agreement of every other pleading defendant
associated with the Miske Enterprise of which the Court is aware has been filed
publicly (not under seal) and without contention.11 While not determinative, that
oral argument that Akau’s Agreement differs from the plea agreements in these
other cases, implicates significantly more concerns, and thus should be treated
accordingly. Misc. Dkt. No. 10. The publicly accessible cooperation provisions in
redaction, would adequately protect that interest. See Phoenix Newspapers, 156
F.3d at 949; Oregonian, 920 F.2d at 1467 n. 1. Because Akau has not
11
See, e.g., United States v. Ashlin Akau, Cr. Case No. 21-00016, Dkt. No. 14; United States v.
Wayne Miller, Cr. Case No. 20-00113, Dkt. No. 31; United States v. Jacob Smith, Cr. Case No.
20-00086, Dkt. No. 52; United States v. Timothy Taboada, Cr. Case No. 19-00147, Dkt. No. 43;
United States v. Jonah Ortiz, Cr. Case No. 19-00141, Dkt. No. 19; Plea Agreement of Hunter J.
Wilson, United States v. Miske, et al., Cr. Dkt. No. 224.
12
Nor has Akau proposed any such alternatives.
15
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CONCLUSION
For the reasons set forth herein, Plaintiff’s motion to unseal Defendant
Norman L. Akau III’s plea agreement, Cr. Dkt. No. 250, is GRANTED. This
Order will be docketed in both relevant cases: Misc. Case No. 21-00298 and Cr.
This Order will remain sealed through October 19, 2021 to afford Akau the
opportunity to seek an emergency stay from the Ninth Circuit and will not be
effective until that time has passed. If no such stay order is received within that
IT IS SO ORDERED.
De~ ...,t.,..so""'n~------..-
United States District Judge
In Re: Civil Beat Law Center For The Public Interest; MC 21-00298 DKW-KJM;
ORDER GRANTING MOTION TO UNSEAL PLEA AGREEMENT
16