USA Motion To Disqualify Defense Counsel, CR. NO. 19-00099-DKW-KJM, District of Hawaii

Case 1:19-cr-00099-DKW-KJM Document 729 Filed 01/13/23 Page 1 of 40 PageID.
4930
CLARE E. CONNORS #7936

United States Attorney
District of Hawaii
MICHAEL D. NAMMAR
MICAH SMITH
MARK A. INCIONG CA BAR #163443
Assistant U.S. Attorneys
Room 6100, PJKK Federal Building
300 Ala Moana Boulevard
Honolulu, Hawaii 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-2958
Email: [email protected]
[email protected]
[email protected]
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-KJM

)
Plaintiff, ) UNITED STATES OF
) AMERICA’S MOTION TO
vs. ) DISQUALIFY DEFENSE
) COUNSEL; CERTIFICATE OF
) SERVICE
MICHAEL J. MISKE, JR., (01) )
)
Defendant. )
)
UNITED STATES OF AMERICA’S MOTION

TO DISQUALIFY DEFENSE COUNSEL
Case 1:19-cr-00099-DKW-KJM Document 729 Filed 01/13/23 Page 2 of 40 PageID.4931
TABLE OF CONTENTS
Page
I. Introduction .................................................................................................... 1
II. Facts ................................................................................................................ 7
a. Miske’s Arrest ...................................................................................... 7
b. The Character Letters ........................................................................... 7
c. The Detention Hearing ......................................................................... 8
d. The Fabricated K.N. Character Letter (Counts 1 and 21) .................. 10
e. The Altered L.K. Character Letter (Counts 1 and 22) ....................... 12
f. The New Obstruction Charges ........................................................... 14
g. Miske’s 2018 Communications with Cooperator A Concerning

Dealings with Mr. Otake and Ms. Panagakos .................................... 14
III. Legal Standards ............................................................................................ 15
a. Right to Assistance of Conflict-Free Counsel.................................... 15
b. Rule Against Advocates as Witnesses ............................................... 18
c. Rule Against Unsworn Witnesses ...................................................... 20
IV. Analysis ........................................................................................................ 22
a. Mr. Otake and Ms. Panagakos Cannot Provide Miske the

Undivided Loyalty the Sixth Amendment Requires .......................... 22
b. The Rules Against Advocates as Witnesses and Unsworn

Witnesses Require Disqualifying Mr. Otake and Ms. Panagakos
as Trial Counsel .................................................................................. 27
V. Conclusion .................................................................................................... 31
ii
TABLE OF AUTHORITIES
Cases Page(s)
Agena v. Cleaver-Brooks, Inc.,

428 F. Supp. 3d 267 (D. Haw. 2019) .......................................................... 20, 30
Bonin v. California,
494 U.S. 1039 (1990) ........................................................................................ 15
Chuck v. St. Paul Fire & Marine Ins. Co.,
61 Haw. 552, 606 P.2d 1320 (1980) ........................................................... 19-20
Ciak v. United States,
59 F.3d 296 (2d Cir. 1995) ............................................................................... 21
Government of Virgin Islands v. Zepp,
748 F.2d 125 (3d Cir. 1984) ....................................................................... 24, 25
Holloway v. Arkansas,
435 U.S. 475 (1978) .......................................................................................... 16
In re Grand Jury Proceedings,
87 F.3d 377 (9th Cir. 1996) .............................................................................. 30
Lockhart v. Terhune,
250 F.3d 1223 (9th Cir. 2001) .......................................................................... 15
Mannhalt v. Reed,
847 F.2d 576 (9th Cir. 1988) ............................................................ 2, 23, 25, 27
Plumlee v. Masto,
512 F.3d 1204 (9th Cir. 2008) .......................................................................... 16
Rojas v. United States,
2019 WL 183850 (S.D. Cal. Jan. 14, 2019) ..................................................... 26
Schell v. Witek,
218 F.3d 1017 (9th Cir. 2000) .......................................................................... 16
Strickland v. Washington,
466 U.S. 668 (1984) .......................................................................................... 16
iii
Cases Page(s)
United States v. Abarca,

985 F.2d 1012 (9th Cir. 1993) .......................................................................... 26
United State v. Chronic,
466 U.S. 648 (1984) .......................................................................................... 16
United States v. Carona,
630 F.3d 917 (9th Cir. 2011) ............................................................................ 21
United States v. Cunningham,
672 F.2d 1064 (2d Cir. 1982) ............................................................................ 29
United States v. Ensign,
491 F.3d 1109 (9th Cir. 2007) .......................................................................... 31
United States v. Evanson,
584 F.3d 904 (10th Cir. 2009) .......................................................................... 28
United States v. Fassett,
185 F. Supp. 3d 507 (M.D. Penn. 2015) ........................................................... 28
United States v. Finkelstein,
2021 WL 2555832 (S.D.N.Y. 2021) ................................................................ 28
United States v. Friedman,
445 F.2d 1076 (9th Cir. 1971) .......................................................................... 30
United States v. Fulton,
5 F.3d 605 (2d Cir. 1993) ................................................................................. 24
United States v. Gonzalez-Lopez,
548 U.S. 140 (2006) .......................................................................................... 18
United States v. Hodge & Zweig,
548 F.2d 1347 (9th Cir. 1977) .......................................................................... 30
United States v. Jones,
381 F.3d 114 (2d Cir. 2004) ............................................................................. 23
iv
Cases Page(s)
United States v. Kenney,

911 F.2d 315 (9th Cir. 1990) ............................................................................ 18
United States v. Kerik,
531 F. Supp. 2d 610 (S.D.N.Y. 2008) .............................................................. 28
United States v. Kliti,
156 F.3d 150 (2d Cir. 1998) ....................................................................... 21, 27
United States v. Kolodesh,
2012 WL 1156334 (E.D. Pa. 2012) ............................................................ 24-25
United States v. Lacerda,
929 F. Supp.2d 349 (D. N.J. 2013) ................................................................... 24
United States v. Levy,
25 F.3d 146 (2d Cir. 1994) ............................................................................... 24
United States v. Locascio,
6 F.3d 924 (2d Cir. 1993) ............................................................................ 20, 21
United States v. Lussier,
71 F.3d 456 (2d Cir. 1995) ................................................................................ 23
United States v. Martinez,
143 F.3d 1266 (9th Cir. 1998) .............................................................. 17, 18, 23
United States v. Matsa,
2010 WL 4117548 (S.D. Ohio 2010) ............................................................... 29
United States v. McKeon,
738 F.2d 26 (2d Cir. 1984) ............................................................................... 20
United States v. Merlino,
349 F.3d 144 (3d Cir. 2003) ....................................................................... 23-24
United States v. Murray,
2013 WL 942514 (N.D. Cal. 2013) .................................................................. 27
v
Cases Page(s)
United States v. Pruitt,

32 F.3d 433 (9th Cir. 1994) .............................................................................. 26
United States v. Rewald,
889 F.2d 836 (9th Cir. 1989) ...................................................................... 18, 26
United States v. Ruhbayan,
201 F.Supp.2d 682 (E.D. Va. 2002) ................................................................. 30
United States v. Schlesinger,
335 F. Supp. 2d 379 (E.D.N.Y. 2004) .............................................................. 28
United States v. Stewart,
185 F.3d 112 (3d Cir. 1999) ............................................................................... 5
United States v. Zolin,
491 U.S. 554 (1989) .......................................................................................... 30
Wheat v. United States,
486 U.S. 153 (1988) .......................................................................... 2, 16, 17, 26
Williams v. Borg,
139 F.3d 737 (9th Cir. 1998) .............................................................................. 6
Wood v. Georgia,
450 U.S. 261 (1981) .......................................................................................... 15
Statutes and Rules
18 U.S.C. § 1512 ................................................................................................... 14
H.R.P.C. Rule 3.7 ...................................................................................... 20, 22, 23
U.S. Const. amend. VI ........................................................................................... 15
vi
I. INTRODUCTION
To protect the integrity of this proceeding, the United States moves to
disqualify Thomas Otake, Esq. and Lynn Panagakos, Esq. from representing
defendant Michael J. Miske, Jr.1 Mr. Otake and Ms. Panagakos each have
multiple, significant conflicts requiring their disqualification.2
The conflicts arise from conduct engaged in by Miske, including conduct
that only recently became known to the United States. As a result, the United
States anticipates its evidence at trial will show:
 Mr. Otake and Ms. Panagakos are percipient and material witnesses to the
genesis, receipt, filing, and use of two fraudulent character letters submitted
to this Court in support of Miske’s motion for pretrial release (Counts 1, 21,
and 22), and in the case of Ms. Panagakos, she directly dealt with Miske and
his subordinates in the filing of these letters; and
 Ms. Panagakos is a percipient witness to Miske purportedly viewing and

discussing “paperwork” with his “doctors” at her law office—revealing that
another member of the Miske Enterprise had “flipped”—which Miske then
communicated to another now-cooperating Miske Enterprise member
1
On January 12, 2023, Mr. Otake advised the United States he would move to withdraw as
counsel for Miske. The motion was filed today. See Dkt. No. 727 (Thomas M. Otake’s Motion
to Withdraw as Counsel). Accordingly, the United States has refrained from including
information it received in December 2022, that provided an additional and substantial basis for
disqualifying Mr. Otake. However, this motion still addresses the conflicts Mr. Otake shares
with Ms. Panagakos.
2
Miske’s third attorney was retained after the United States made Mr. Otake and Ms. Panagakos
aware of Miske’s obstructive conduct during numerous conversations beginning in August of
2022. See Dkt. No. 659 (pro hac vice admission of Michael J. Kennedy, Esq.). The United
States is aware of no conflict with Mr. Kennedy’s continued representation of Miske.
(“Cooperator A”) with a warning that Cooperator A should not take calls
from anyone “inside” because Miske could “guarantee” they were recorded.
The United States does not make this motion lightly, given the status of the
case, the approaching trial date, and Miske’s general—but not unfettered—right to
counsel of his choice.3 Nor does it wish for Miske’s conduct to delay the rights of
his co-defendants to a speedy trial. The United States, however, is obligated to
raise both the conflicts arising out of Miske’s recently-discovered conduct as well
as the other identified conflicts to preserve the integrity of the judicial process,
protect the defendant’s constitutional rights, and avoid non-waivable post-
conviction claims, including a claim for ineffective assistance of counsel. See
Wheat v. United States, 486 U.S. 153, 160 (1988) (“federal courts have an
independent interest in ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear fair to all who
observe them”); Mannhalt v. Reed, 847 F.2d 576, 584 (9th Cir. 1988) (directing
prosecutors to “bring the potential conflict to the trial judge’s attention and move
for disqualification if appropriate.”). Based on the totality of the circumstances,
3
As noted, Mr. Otake and Ms. Panagakos have known the concerns about their continued
representation of Miske since August 30, 2022. Ostensibly, these concerns precipitated the
addition of Mr. Kennedy in November 2022. See Dkt. No. 659 (pro hac vice admission of
Michael J. Kennedy, Esq.).
2
as discussed here, the United States believes the Court must disqualify Mr. Otake
and Ms. Panagakos from further representation of Miske.
First, Miske’s conduct has placed his interests at odds with the interests of
Mr. Otake and Ms. Panagakos in ways that raise the specter that Mr. Otake and
Ms. Panagakos may not represent Miske with undivided loyalty, both inside and
outside the courtroom. Most notably, both Mr. Otake and Ms. Panagakos could
be concerned about reputational, disciplinary, or other consequences for their
involvement with the fraudulent character letters, which could, in turn, affect their
advice to, and representation of, Miske (e.g., steer him away from pursuing an
advice-of-counsel defense). Likewise, Miske’s communications to a co-
conspirator in 2018—while Miske was at the height of running the Miske
Enterprise and under intense federal investigation—that his “doctor” (i.e., Ms.
Panagakos) purportedly showed him “paperwork” about a witness “flipping” and
advised him about steps he should take to protect himself from further
incrimination (e.g., not speak to anyone “inside”), which Miske immediately
shared with a trusted longtime co-conspirator, could cause Ms. Panagakos to
consider her own interests, reputational and otherwise, over those of Miske (e.g.,
encourage him to deny the meeting occurred given fears about being viewed as
“house counsel” for the Miske Enterprise).
3
As Ms. Panagakos herself explained in 2018, while seeking to withdraw as
counsel for a client who—just like Miske—made her a percipient witness to his
crimes by using her as a conduit to submit fraudulent documents in the very federal
criminal proceeding in which she represented him, “there are . . . so many
questions I could think of as to why I have a conflict in providing advice to [client]
or standing here speaking to you” and “there’s just so many different ways this
potentially needs to be defended that I can’t provide advice about.” United States
v. Rivera, 17-CR-00301-SOM, Dkt. No. 110 at Page ID # 1274 (Feb. 21, 2018 Tr.).
As Ms. Panagakos recognized in Rivera, given the incalculable number of ways
that Miske’s interests can and might diverge from those of Mr. Otake and Ms.
Panagakos, the only appropriate solution in this face of this sort of conflict is
disqualification.
Second, Mr. Otake and Ms. Panagakos are percipient witnesses with distinct
and unmatched firsthand knowledge about key events that will be part of the proof
at trial, requiring their disqualification under the longstanding prohibition that
attorneys representing a client at trial cannot also be a witness in that same trial.
See Hawaii Rules of Professional Conduct (“HRPC”) 3.7(a). Even if, arguendo,
the United States somehow could put on sufficient evidence in its case-in-chief
without testimony from Mr. Otake and Ms. Panagakos, both unquestionably have
4
the potential to be necessary witnesses. No one knows how the evidence at trial
will unfold or what defenses Miske may assert in response (e.g., advice of counsel)
making it impossible to navigate the countless scenarios that could trigger the need
for testimony from Mr. Otake and Ms. Panagakos.4
Third, even if Mr. Otake and Ms. Panagakos are not trial witnesses, the
“unsworn witness” rule also requires their disqualification as trial counsel. At
trial, the jury will hear witness testimony, view documents, and hear argument that
Mr. Otake and Ms. Panagakos were directly involved with key events in the case,
including filing the fraudulent character letters with the Court and communicating
both with trial witnesses (e.g., Individual A identified in Counts 21 and 22) and a
trial co-defendant (i.e., Delia Fabro-Miske) about the fraudulent character letters.5
4
See, e.g., United States v. Stewart, 185 F.3d 112, 122 (3d Cir. 1999) (“Moreover,
notwithstanding an attorney’s pretrial assurances otherwise, a defendant’s trial strategy is not
fixed. Thus, if an attorney has been unsuccessful in bringing out the necessary points in support
of a contemplated defense, the attorney may change his strategy to provide the defendant with
the best possible defense. Accordingly, the district court could not accept Stewart’s assurances
that he would not pursue an alternate strategy at trial. In fact, by so doing, the court would have
been opening the door for a manufactured mistrial or a possible ineffective assistance of
counsel claim on appeal.”) (emphasis added).
5
Presumably, Mr. Otake and Ms. Panagakos also advised Miske about the character letters,
including what they should say, who should provide them, which ones to file, and that they
should not be forged. At trial, the United States expects to introduce trial testimony that Miske
disclosed to a third party that Mr. Otake and Ms. Panagakos advised Miske it was important that
Miske obtain a character letter from someone who did not work for him, and this advice
prompted the drafting of the character letter that is the subject of Count 21.
5
The jury will also hear witness testimony about conversations in which Mr. Otake
and Ms. Panagakos allegedly participated, as well as evidence concerning their
whereabouts and activities on relevant dates. Permitting Mr. Otake and Ms.
Panagakos to try a criminal case that involves evidence of events about which they
have unique, firsthand knowledge—including events that are direct proof of
charged crimes by Miske and a trial co-defendant—will cause jurors to wonder
why they are not hearing about those events from the courtroom advocates
standing before them with direct knowledge of them. Permitting Mr. Otake and
Ms. Panagakos to try the case is also prejudicial to the factfinding process because
Mr. Otake and Ms. Panagakos could—through argument, cross-examination,
inuendo, and other means—put their unsworn testimony about what they saw,
heard, and did before the jury and allow them to do so without being subject to
cross-examination.6 There is also a risk that, because of Mr. Otake and Ms.
6
Cross examination of opposing counsel at trial is not a cure. The United States cannot be
placed in the ethically treacherous predicament of attempting to effectively cross-examine
opposing counsel while simultaneously avoiding issues related to, e.g., attorney-client privilege
and defense camp strategy, or risk being accused of maligning the integrity of opposing counsel
by challenging the accuracy of their version of events. See, e.g., Williams v. Borg, 139 F.3d
737, 745 (9th Cir. 1998) (“Absent specific evidence in the record, defense counsel should not be
maligned” because “generally it is unprofessional for the prosecutor to try the defendant’s lawyer
instead of the defendant even if there is specific evidence.”)
6
Panagakos’ standing as courtroom advocates, jurors may unduly credit their
unsworn testimony (i.e., effectively allowing impermissible vouching).
II. FACTS
a. Miske’s Arrest
On June 18, 2020, Miske was charged, via a Superseding Indictment, with
seventeen separate felony offenses. See Dkt. No. 3. On July 15, 2020, after
Miske was arrested, the United States filed a motion to detain Miske without bail
pending trial. See Dkt. No. 22. Also on July 15, 2020, Ms. Panagakos and Mr.
Otake appeared as retained counsel of record for Miske.7 See Dkt. No. 30.
b. The Character Letters
On August 7, 2020, Miske’s counsel signed and submitted a memorandum in
opposition to the United States’ motion to detain, seeking Miske’s release on bail.
See Dkt. No. 141-1 (the “Opposition Memorandum”). Ms. Panagakos filed the
Opposition Memorandum via ECF and attached seven character letters. See Dkt.
No. 141-4 (“the Filed Character Letters”). The Opposition Memorandum
explained, “in anticipation of his eventual arrest and government motion to detain
him pending trial, Mr. Miske began assembling character reference letters to be
7
Ms. Panagakos and Mr. Otake previously informed the United States on August 15, 2017, that
they represented Miske. See Dkt. No. 141-3.
7
submitted to the Court in support of his anticipated request for pretrial release.”
Dkt. No. 141 at Page ID # 721. The Opposition Memorandum indicated that the
Filed Character Letters were from “Angela Varnadore, Pastor Kekuna, Larry Kahu
[sic], Brian P.K. Marina [sic], Allen Lau, and Kurt Nosal.” Id. at Page ID # 717.
On August 9, 2011, a local blogger, Ian Lind, posted the character letters filed with
the Court by Ms. Panagakos on his website. See iLind, Defense lawyers seek Mike
Miske’s release to house arrest, https://www.ilind.net/2020/08/09/defense-lawyers-
seek-mike-miskes-release-to-house-arrest (last visited Jan. 12, 2023).
c. The Detention Hearing
On August 11, 2020, Miske was ordered detained pending trial after a
detention hearing. See Dkt. No. 144. At the outset of that hearing, the Court noted
that it “reviewed Mr. Miske’s memo in opposition filed on the 7th” and thanked
“everyone for their thorough briefing of the issue” because “[i]t is rare that the Court
has so much information available to it when making a decision like this.” See Dkt.
No. 609 (“Detention Hearing Transcript”) at p. 4.
During the hearing, Mr. Otake repeatedly cited the character letters to the
Court:
“The letters in support we collected Your Honor, tell you a lot about
who Mr. Miske is. Again, you know, now we’re criticized because
those letters of support were collected a while ago when instead of
8
fleeing in the face of investigation, Mr. Miske prepared, hired

attorneys, hired forensic accountants, got letters of support, and now
we’re faulted for collecting them too early. The letters of support
say a lot, Your Honor. They tell you about his ties to the
community, the person that he is.”
Id. at pp. 21-22.
***
“You know, I go back to the collective letters in support back then

because he knew he wasn’t going to flee. He was going to stay here
and someday he would be, you know, potentially before your Honor,
and we wanted to have letters of support in place at that time. If
you’re going to flee, you don’t take the time to do that. But then
again, now we’re faulted for collecting those too early.”
Id. at p. 26.
***
“We’ve provided you with . . . letters of support . . . we’ve got letters

of support together . . . .”
Id. at pp. 34-35.
After argument from the parties, the Court ordered Miske detained, finding
that the United States had “established, by clear and convincing evidence, that Mr.
Miske is a danger to the community, and by a preponderance of the evidence that
he is a flight risk.” Id. at p. 42. The Court thanked the parties for their written
submissions a second time, explaining “it’s rare that this issue is so well litigated,
and I absolutely appreciate the written presentation and the oral presentation” and
9
that “it is helpful to me in making . . . what is a significant decision for
everybody.” Id. at p. 39.
d. The Fabricated K.N. Character Letter (Counts 1 and 21)
On August 12, 2020, one day after the Miske detention hearing, K.N., an
employee of a chemical supply company who served as the account representative
for Miske, exchanged emails with two co-workers. The initial email, sent to K.N.
by Co-Worker A, alerted K.N. that Lind had posted a letter filed with the Court—
purportedly authored and signed by K.N. attesting to Miske’s good character and
asking the Court to release Miske on bail—on his website. K.N. replied,
“Absolutely, positively, 100% sure I did not write and sign that letter! Not even
close to my signature! Thank you both!”
After learning of this email exchange in 2022, a federal agent interviewed
K.N. K.N. said he never wrote a character letter for Miske, that he did not write
the character letter filed by Mr. Otake and Ms. Panagakos, and that he did not
authorize anyone to write it on his behalf. K.N. said that the K.N. character letter
did not comport with his writing or spelling habits, and that the signature depicted
was not his. K.N. also said he would not have written the K.N. character letter
because he did not agree with its content and, additionally, that, as of August 29,
10
2018—the date on the letter—Miske had not been charged or incarcerated such
that he would even know to ask for Miske’s release.
Subsequent investigative steps, including a series of federal search warrants,
federal grand jury subpoenas, and witness interviews, corroborated K.N.’s
assertion that the K.N. character letter filed by Mr. Otake and Ms. Panagakos was,
in fact, fraudulent. 8 The evidence at trial will show that (1) the K.N. character
letter was drafted by a longtime Miske associate (identified as “Individual A”), at
Miske’s direction; (2) Individual A, at Miske’s direction, created a new Gmail
account using an alias (“natasha.rae.smith808”) which Individual A then used to
email an unsigned draft of the K.N. character letter to Miske (who, like Individual
A, was also using a newly-created Gmail account, “mmaloha808”); (3) Miske,
using that same “mmaloha808” Gmail account, forwarded the unsigned draft of the
K.N. character letter to a longstanding Gmail account used by Delia Fabro-Miske;
8
The investigation included federal grand jury subpoenas issued to Mr. Otake and Ms.
Panagakos in August 2022, for documents related to the character letters filed with the Court.
At Ms. Panagakos’ request, the United States subsequently agreed to limit the scope of those
federal grand jury subpoenas to documents related solely to provision of the two character letters
identified as fraudulent, rather than all seven of the filed character letters. But for that
agreement, the federal grand jury subpoena would have required production of an email Ms.
Panagakos received from the user of the “mmaloha808” Gmail account (forwarding, from Delia
Fabro-Miske’s email account, a character letter, authored by A.L.). The United States
subsequently received that email on November 11, 2022, in response to a search warrant issued
to Google for the contents of the “mmaloha808” Gmail account.
11
(4) Delia Fabro-Miske searched the internet for examples of K.N.’s signature; and
(5) Delia Fabro-Miske subsequently emailed a scanned Adobe PDF version of the
K.N. character letter—bearing K.N.’s forged signature for the first time—directly
to Mr. Otake and Ms. Panagakos, who subsequently filed it with this Court. The
evidence at trial will also show that Mr. Otake and Ms. Panagakos had other
communications with both Individual A and Delia Fabro-Miske related to other
character letters, both filed and unfiled, and that Individual A and Delia Fabro-
Miske assisted in the collection, preparation, and eventual submission of those
character letters to Mr. Otake and Ms. Panagakos.
e. The Altered L.K. Character Letter (Counts 1 and 22)
In 2022, a federal agent interviewed L.K. after learning the K.N. character
letter was fabricated. L.K. said he had worked for Miske’s pest control company
since 2015, and that, in 2018, L.K. wrote a letter, at Miske’s request, discussing
Miske’s character in support of permitting a memorial established for Miske’s
deceased son to remain in place. L.K. recalled typing the letter on a computer and
emailing it, or delivering a printed version of it, to Delia Fabro-Miske. After
reviewing the character letter bearing his name filed by Mr. Otake and Ms.
Panagakos in support of Miske’s motion for pretrial release, however, L.K. said
that it was altered without his permission because someone had changed the
12
salutation from “To whom it may concern” to “Dear Honorable Judge” and applied
a forged signature. L.K. also said that he did not, and would not have, authorized
anyone to edit or repurpose the character letter he drafted in 2018 for the purpose
of supporting Miske’s bail.
A subsequent investigation corroborated L.K.’s assertion that the L.K.
character letter filed by Mr. Otake and Ms. Panagakos was fraudulent. The
evidence at trial will show that (1) Individual A sent an email to Delia Fabro-
Miske, attaching an unsigned version of L.K.’s character letter with the salutation
“To whom it may concern,” along with instructions to show the L.K. character
letter to Miske, and, if Miske liked it, have it signed; (2) Individual A, shortly
thereafter, sent another email to Delia Fabro-Miske, again attaching an unsigned
version of L.K.’s character letter—but this time bearing the salutation “Dear
Honorable Judge” in lieu of “To whom it may concern,” accompanied with
instructions “see updated attached,” followed by a separate email stating that
Miske had approved another character letter from S.D., and Delia-Fabro Miske
should email the signed character letters, including the modified L.K. character
letter, back to Individual A; (3) Individual A sent an email to S.D., attaching the
updated L.J. character letter, and others, with instructions to “have everyone sign
these privately and scan back to me the signed documents;” (4) S.D., shortly
13
thereafter, emailed a scanned Adobe PDF version of the L.K. character letter to
Individual A; and (5) Individual A then renamed that Adobe PDF file to “Larry-
Signed.pdf” and emailed it, along with two other character letters, to Mr. Otake
and Ms. Panagakos, who subsequently filed the altered and forged L.K. character
letter with the Court.
f. The New Obstruction Charges
On December 9, 2022—less than a month after the United States received
search warrant returns from Google for the “mmaloha808” and
“natasha.rae.smith808” Gmail accounts containing critical evidence linking Miske
to the fraudulent K.N. character letter—the grand jury returned a Third
Superseding Indictment. That Indictment charged Miske with two counts of
obstruction of justice (Counts 21 and 22) related to the fraudulent character letters,
in violation of 18 U.S.C. § 1512, and also added—as an updated predicate for the
RICO conspiracy charged in Count 1—allegations concerning the creation,
submission, and use of those fraudulent character letters. See Dkt. No. 673.
g. Miske’s 2018 Communications with Cooperator A Concerning

Dealings with Mr. Otake and Ms. Panagakos
At trial, the United States intends to offer evidence that Miske
communicated extensively with Cooperator A concerning the interests of the
Miske Enterprise. Among those communications are a series of incriminating text
14
messages, exchanged via WhatsApp in 2018, wherein Miske reveals to Cooperator
A that Miske was just “leaving doctors office now” (accompanied by a photograph
of the entrance to the door to Ms. Panagakos’ law office). Miske then explains to
Cooperator A that the “doctors” (presumably Ms. Panagakos) just told him that
another member of the Miske Enterprise was “flipping” and advises Cooperator A
not to take calls “from anybody inside” because “guarantee it’s going to be
recorded.” Miske then assures Cooperator A, “I seen the paperwork” and
“wouldn’t lie to you.”
III. LEGAL STANDARDS
a. Right to Assistance of Conflict-Free Counsel
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. With that comes the correlative right that such
representation be free from conflicts of interest. Wood v. Georgia, 450 U.S. 261,
271 (1981); Lockhart v. Terhune, 250 F.3d 1223, 1226 (9th Cir. 2001) (“right to
counsel includes the right to be represented by an attorney with undivided
loyalty.”); Bonin v. California, 494 U.S. 1039, 1044 (1990) (Marshall, J.,
dissenting) (“The right to counsel’s undivided loyalty is a critical component of the
right to assistance of counsel; when counsel is burdened by a conflict of interest, he
15
deprives his client of his Sixth Amendment right as surely as if he failed to appear
at trial.”).
Upon learning of a possible conflict between the interests of a defendant and
his counsel, the Court must make an inquiry. Plumlee v. Masto, 512 F.3d 1204,
1211 (9th Cir. 2008) (citing Schell v. Witek, 218 F.3d 1017, 1025-126) (9th Cir.
2000)). If a conflict exists and is not waivable, or the defendant chooses not to
waive it, the Court must disqualify counsel. Because conflicts may result in an
attorney’s assistance being deemed ineffective, the Supreme Court has long
cautioned that trial courts be diligent in addressing them. See, e.g., Strickland v.
Washington, 466 U.S. 668, 692 (1984); Holloway v. Arkansas, 435 U.S. 475, 484
(1978) (“Upon the trial judge rests the duty of seeing that the trial is conducted
with solicitude for the essential rights of the accused . . . The trial court should
protect the right of an accused to have the assistance of counsel.”) (citation
omitted).
The Sixth Amendment’s “essential aim” is to “guarantee an effective
advocate” rather than ensure that a criminal defendant “will inexorably be
represented by the lawyer whom he prefers.” Wheat, 486 U.S. at 159; see also
United State v. Chronic, 466 U.S. 648, 657 n. 21 (1984) (“the appropriate inquiry
focuses on the adversarial process, not on the accused’s relationship with his
16
lawyer as such.”). Thus, while a criminal defendant may make a “voluntary,
knowing, and intelligent waiver” of conflict free representation, United States v.
Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998) (citation omitted), district courts
retain “substantial latitude” to refuse waivers “not only in those rare cases where
an actual conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses,” Wheat, 486 U.S. at 163 (emphasis added).
As the Supreme Court explained in Wheat:
Unfortunately for all concerned, a district court must pass on the

issue whether or not to allow a waiver of a conflict of interest by a
criminal defendant not with the wisdom of hindsight after the trial
has taken place, but in the murkier pre-trial context when
relationships between parties are seen through a glass, darkly. The
likelihood and dimensions of nascent conflicts of interest are
notoriously hard to predict, even for those thoroughly familiar with
criminal trials. It is a rare attorney who will be fortunate enough to
learn the entire truth from his own client, much less be fully apprised
before trial of what each of the Government’s witnesses will say on
the stand. A few bits of unforeseen testimony or a single previously
unknown or unnoticed document may significantly shift the
relationship between multiple defendants. These imponderables are
difficult enough for a lawyer to assess, and even more difficult to
convey by way of explanation to a criminal defendant untutored in
the niceties of legal ethics. Nor is it amiss to observe that the
willingness of an attorney to obtain such waivers from his clients
may bear an inverse relation to the care with which he conveys all
the necessary information to them.
17
Id. at 162-163; see also United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)
(reiterating that courts have discretion to refuse waivers and affirming that a
defendant may not “demand that a court honor his waiver of conflict-free
representation”); United States v. Rewald, 889 F.2d 836, 858 (9th Cir. 1989)
(“[T]he potential for a conflict of interest is determinative.”). Given the high
stakes, when considering whether to disqualify an attorney, the Court must
“indulge every reasonable presumption against the waiver of fundamental rights.”
Martinez, 143 F.3d at 1269 (citation omitted). A trial court’s decision to
disqualify counsel is reviewed for abuse of discretion. United States v. Kenney,
911 F.2d 315, 320 (9th Cir. 1990).
b. Rule Against Advocates as Witnesses
As the ethical rules adopted by the American Bar Association have long
recognized, “[t]he roles of an advocate and of a witness are inconsistent; the
function of an advocate is to advance or argue the cause of another, while that of a
witness is to state facts objectively.” American Bar Association, Code of
Professional Responsibility EC 5–9 (1978). Hawaii’s implementation of this
18
precept is set forth at Rule 3.7(a) (“Lawyer as Witness”) of the HRPC,9 which
provides, in relevant part:
A lawyer shall not act as advocate at a trial in which the lawyer is

likely to be a necessary witness except where: (1) the testimony
relates to an uncontested issue; (2) the testimony relates to the nature
and value of legal services rendered in the case; or (3)
disqualification of the lawyer would work substantial hardship on the
client.
In assessing “substantial hardship” under Rule 3.7(a), the comments explain:
paragraph (a)(3) recognizes that a balancing is required between the

interests of the client and those of the tribunal and of the opposing
party. Whether the tribunal is likely to be misled or the opposing
party is likely to suffer prejudice depends on the nature of the case,
the importance and probable tenor of the lawyer’s testimony, and the
probability that the lawyer’s testimony will conflict with that of other
witnesses. It is relevant that one or both parties could reasonably
foresee that the lawyer would probably be a witness.
HRPC 3.7, cmt. 4. Attorneys are prohibited from acting as both advocate and
witness in a trial because, inter alia, “[c]ombining the roles of advocate and
witness can prejudice the tribunal and the opposing party,” see HRPC 3.7, cmt. 1,
and “it may not be clear whether a statement by an advocate-witness should be
taken as proof of or an analysis of the proof.” HRPC 3.7, cmt. 2; see also Chuck
9
The Local Rules of this Court provide that “[e]very member of the bar of this court . . . shall be
governed by and shall observe the standards of professional and ethical conduct required of
members of the State Bar of Hawaii.” Local Rule LR83.3. Accordingly, the HRPC control
whether Mr. Otake and Ms. Panagakos can ethically represent Miske at trial.
19
v. St. Paul Fire & Marine Ins. Co., 61 Haw. 552, 560, 606 P.2d 1320, 1325 (1980)
(analysis requires “considered evaluation of all pertinent factors including, inter
alia, the significance of the matters to which he might testify, the weight his
testimony might have in resolving such matters, and the availability of other
witnesses or documentary evidence by which these matters may be independently
established.”); accord Agena v. Cleaver-Brooks, Inc., 428 F. Supp. 3d 267, 275-
276 (D. Haw. 2019) (“HRPC 3.7 precludes [counsel “likely to be necessary
witnesses”] from serving as counsel at trial.”).
c. Rule Against Unsworn Witnesses
“An attorney acts as an unsworn witness when his relationship to his client
results in his having first-hand knowledge of the events presented at trial.” United
States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993). Disqualification is appropriate
where “counsel assumes a role as an unsworn witness whose credibility is in issue”
and is therefore likely to “taint the trial.” United States v. McKeon, 738 F.2d 26,
35 (2d Cir. 1984) (“If counsel were to cross-examine the witness as to her
conversations with him, argue the credibility of her testimony to the jury, or
suggest alternative interpretations of her account of the conversation, he would
place himself in the position of an unsworn witness and implicitly put his own
credibility at issue.”). “Standing alone, becoming an unsworn witness is a basis
20
for disqualification of an attorney.” Ciak v. United States, 59 F.3d 296, 304-305
(2d Cir. 1995); United States v. Kliti, 156 F.3d 150, 156 (2d Cir. 1998) (“When
faced with an attorney as a sworn or unsworn witness, the proper recourse is to
disqualify the attorney, not to exclude the testimony.”); see generally United States
v. Carona, 630 F.3d 917, 924 (9th Cir. 2011) (“The district court properly held that
disqualification [of prosecutor] was not necessary under the . . . the unsworn-
witness rule”). As the Second Circuit explained in Locasio, 6 F.3d at 933:
Even if the attorney is not called, however, he can still be

disqualified, since his performance as an advocate can be impaired
by his relationship to the events in question. For example, the
attorney may be constrained from making certain arguments on
behalf of his client because of his own involvement, or may be
tempted to minimize his own conduct at the expense of his client.
Moreover, his role as advocate may give his client an unfair
advantage, because the attorney can subtly impart to the jury his first-
hand knowledge of the events without having to swear an oath or be
subject to cross examination . . . When an attorney is an unsworn
witness . . . the detriment is to the government, since the defendant
gains an unfair advantage, and to the court, since the factfinding
process is impaired. Waiver by the defendant is ineffective in
curing the impropriety in such situations, since he is not the party
prejudiced.
21
IV. ANALYSIS
a. Mr. Otake and Ms. Panagakos Cannot Provide Miske The

Undivided Loyalty the Sixth Amendment Requires.
The conflict between Miske, and Mr. Otake and Ms. Panagakos, arising
from the creation, filing, and use of fraudulent character letters with the Court is a
serious one that warrants disqualification.
As a threshold matter, the United States does not have any evidence
suggesting either Mr. Otake or Ms. Panagakos knew the character letters they filed
with the Court were fraudulent; intended to obstruct justice; or gave questionable
advice to Miske or anyone else pertaining to the fraudulent character letters.
However, Mr. Otake and Ms. Panagakos may have—and certainly could later be
accused by Miske of having—concerns about personal consequences arising from
their filing of the fraudulent character letters or the suggestion they crossed ethical
lines while providing advice to Miske before he was charged and while he ran the
Miske Enterprise. For example, as members of the Hawaii State Bar, Mr. Otake
and Ms. Panagakos are subject to the HRPC, which contains numerous provisions
concerning assisting a client with a violation of law, and from submitting
fraudulent documents.10 The mere possibility that they might harbor concerns
10
See, e.g., HRPC 1.2(d) (“Scope of Representation”); HRPC 3.1 (“Diligence”); HRPC 3.1
(“Meritorious Claims and Contentions”); HRPC 3.3 (“Candor Toward The Tribunal”); HRPC
22
about their representation counsels against further representation under HRPC
1.7(2). See, e.g., HRPC 1.7, cmt. 10 (“For example, if the probity of a lawyer’s
own conduct in a transaction is in serious question, it may be difficult or
impossible for the lawyer to give a client detached advice.”).
When defense counsel may have concerns regarding potential consequences
based on actions undertaken on behalf of their client, defense counsel has an actual
or serious potential conflict of interest. Mannhalt, 847 F.2d at 581 (“when an
attorney is accused of crimes similar or related to those of his client, an actual
conflict exists because the potential for diminished effectiveness in representation
is so great”); Martinez, 143 F.3d at 1270 (“Although we have not yet specified
when a district court must override a defendant’s waiver, the Second Circuit has
held that an actual conflict that is ‘so egregious that no rational defendant would
knowingly and voluntarily desire the attorney’s representation’ cannot be
waived.”) (citing United States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995)); United
States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004) (“An actual conflict of interest
exists when the attorney’s and the defendant’s interests ‘diverge with respect to a
material factual or legal issue or to a course of action’”) (citations omitted); United
3.4 (“Fairness to Opposing Party and Counsel”).
23
States v. Merlino, 349 F.3d 144, 151 (3d Cir. 2003) (based on defense counsel’s
attempt to influence a Government witness, “there was a potential for conflict
between [defense counsel’s] personal interest in avoiding an accusation of
professional or criminal misconduct and his duty to vigorously defend [his
client]”); United States v. Levy, 25 F.3d 146, 156 (2d Cir. 1994) (“Many courts
have found an actual conflict of interest when a defendant’s lawyer faces possible
criminal charges or significant disciplinary consequences as a result of
questionable behavior related to his representation of the defendant.”); United
States v. Fulton, 5 F.3d 605, 610 (2d Cir. 1993) (“If the allegations [of attorney’s
involvement in criminal activity] are true, the attorney may fear that a spirited
defense could uncover convincing evidence of the attorney’s guilt or provoke the
government into action against the attorney”); Government of Virgin Islands v.
Zepp, 748 F.2d 125, 136 (3d Cir. 1984) (defense counsel had an actual conflict of
interest based on his potential criminal liability for aiding and abetting the
destruction of evidence, as well as disciplinary consequences); United States v.
Lacerda, 929 F. Supp.2d 349 (D. N.J. 2013) (defense counsel who assured
employees that the pitch scripts for fraud scheme were legal had an actual conflict
because he engaged in conduct for which he could be subject to potential criminal
liability or professional discipline); United States v. Kolodesh, 2012 WL 1156334
24
at *6-*8 (E.D. Pa. 2012) (defense counsel’s role as a potential witness in a fraud
scheme was inherently inconsistent with his role as an advocate because he would
be tempted to focus on his own interest, rather than serving his client).
Here, Miske used Mr. Otake and Ms. Panagakos as conduits to obstruct
justice in a federal criminal proceeding. While it is difficult to envision all the
ways this could impact their representation of Miske, as discussed above, Mr.
Otake and Ms. Panagakos may have concerns about potential consequences to their
reputations in a high-profile criminal case, and harbor some degree of resentment
toward Miske. As another district court has explained, citing the Ninth Circuit’s
opinion in Mannhalt, “a lawyer facing possible reputational or criminal
consequences because of his own involvement in conduct at issue in a criminal
trial might make biased decisions about whether to call certain witnesses and what
to ask them.” Napoli, 2011 WL 1302317, at *6 (citing Mannhalt, 847 F.2d at
581); accord Zepp, 748 F.2d at 136 (“[I]t is unrealistic for this court to assume that
[defense counsel] vigorously pursued his client’s best interest entirely free from the
influences of his concern to avoid his own incrimination[.]”). To avoid these
concerns—and allegations of them in future litigation by Miske if he is
convicted—Mr. Otake and Ms. Panagakos should be disqualified now because
their divided loyalties present an actual conflict of interest.
25
Any effort to waive the conflict of interest would be problematic. It is
extremely difficult for a trial court to ensure that defendants have knowingly and
voluntarily waived actual conflicts of interests; for this reason such waivers are
routinely rejected. Wheat, 486 U.S. at 162 (“Where a court justifiably finds an
actual conflict of interest, there can be no doubt that it may decline a proffer of
waiver[.]”). The Supreme Court and the Ninth Circuit have rejected waivers in
cases with conflicts less troublesome than the one presented here. See Rewald,
889 F.2d at 857. If the Court nonetheless decides Miske can be adequately
advised of the myriad possible consequences of a waiver, the Court may consider
appointing another attorney for this purpose. Even then, Miske cannot
prospectively waive his ability to seek review or pursue a collateral attack based on
a later claim that his actually-conflicted counsel provided ineffective assistance of
counsel at trial. See Rojas v. United States, 2019 WL 183850 at *2 (S.D. Cal.
2019) (“[A] waiver cannot bar a claim that relates to the validity of the waiver
itself, such as ineffective assistance of counsel”) (citing United States v. Pruitt, 32
F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th
Cir. 1993) (expressly declining to hold that a waiver forecloses a claim of
ineffective assistance or involuntariness of the waiver). Thus, if the Court allows
a waiver so that Mr. Otake and Ms. Panagakos may continue representing Miske
26
notwithstanding their divergent interests, Miske remains well-positioned in any
post-conviction litigation to challenge their advice, effectiveness, and loyalty.
b. The Rules Against Advocates As Witnesses and Unsworn

Witnesses Require Disqualifying Mr. Otake and Ms. Panagakos
as Trial Counsel.
Mr. Otake and Ms. Panagakos have firsthand knowledge concerning the
fraudulent character letters. Because Miske has placed them in the position of
being either sworn or unsworn witnesses at trial, they should be disqualified from
serving as trial counsel. See Kliti, 156 F.3d at 156.
Courts in the Ninth Circuit routinely disqualify defense counsel in similar
situations where counsel were enmeshed in their clients’ criminal acts. See
Mannhalt, 847 F.2d at 582 (defendant was denied effective assistance of counsel
because defense attorney was implicated in criminal activity); United States v.
Murray, 2013 WL 942514, at *3 (N.D. Cal. 2013) (defense counsel and his firm
were disqualified due to two serious potential conflicts of interest; “there is a
conflict of interest because, having received a portion of the allegedly tainted
$410,000, [defense counsel] has become at the very least a potential percipient
witness”); Napoli, 2011 WL 1302317, at *5-*6 (defense counsel sent
communications regarding an internet pharmacy to potential business associates,
was a lawyer on two declaratory judgment actions, and authored the target
27
response letter). Other courts have also disqualified counsel who were witnesses
to their clients’ crimes, including allegations of obstruction of justice. See United
States v. Evanson, 584 F.3d 904, 912 (10th Cir. 2009) (defense counsel drafted
letters that the defendant sent to participants in his tax fraud scheme); United States
v. Finkelstein, 2021 WL 2555832, at *3–4 (S.D.N.Y. 2021) (“[T]here is no dispute
that [defense counsel] has first-hand knowledge of – indeed was an unwitting
participant in – communications that the Government contends constitute
obstruction of justice.”); United States v. Fassett, 185 F. Supp. 3d 507, 509 (M.D.
Penn. 2015) (defense counsel attended meeting where the defendant allegedly
admitted that he transferred the victim’s money into his own accounts and then
spent the money for his own interests); United States v. Kerik, 531 F. Supp. 2d
610, 613, 615 (S.D.N.Y. 2008) (defendant was alleged to have “obstructed [a] state
investigation through his lawyers’ unwittingly-made obstructive statements”);
United States v. Schlesinger, 335 F. Supp. 2d 379, 382 (E.D.N.Y. 2004)
(disqualifying defense counsel where the Government asserted that it would “prove
that [the defendant’s] alleged effort to defraud creditors was carried forward by his
use of [the attorney] to reverse [a] tax assessment”).
Disqualification certainly would be required if Miske raises an advice-of-
counsel defense, as Mr. Otake and Ms. Panagakos would be necessary defense
28
witnesses. See United States v. Matsa, 2010 WL 4117548, at *2 (S.D. Ohio 2010)
(disqualifying counsel in a case where it was likely that the defendant would assert
an advice of counsel defense associated with a letter drafted by his counsel “that
resulted in a specific count in the indictment”); accord United States v.
Cunningham, 672 F.2d 1064, 1074 (2d Cir. 1982) (noting that if a certain witness
testified, defense counsel would need to testify as a rebuttal witness, and should be
disqualified under the advocate-witness rule).
Additionally, multiple trial witnesses are likely to testify about their prior
dealings with Mr. Otake and Ms. Panagakos. As discussed, extensive testimony
and documents will concern the fraudulent character letters. Cooperator A,
similarly, is expected to testify about text messages exchanged with Miske
concerning Miske’s dealings with Ms. Panagakos.
Documentary evidence at trial also will reflect prior communications with
Ms. Panagakos and Mr. Otake by various witnesses, including Individual A and
defendant Delia Fabro-Miske, concerning the fraudulent character letters.11
Fundamentally, permitting Mr. Otake and Ms. Panagakos to continue as trial
11
Because defendant Delia Fabro-Miske is implicated in the creation and provision of the
fraudulent character letters, allowing Mr. Otake and Ms. Panagakos to serve as trial counsel may
also implicate her Sixth Amendment right to confront her accusers.
29
counsel, given these circumstances, will blur the distinctions between witnesses
and advocates. It also would permit Mr. Otake and Ms. Panagakos to “appear to
vouch for [their] own credibility,” placing the United States in the “difficult
situation” of cross-examining a lawyer adversary and running the risk that the truth
may be distorted during the presentation to the jury. Agena, 428 F. Supp. at 276
(citations omitted). Additionally, Mr. Otake and Ms. Panagakos remain potential
witnesses if Miske takes the stand and claims that they advised him, or his
subordinates, it was acceptable to, for example, “adapt” L.K.’s character letter
from one purpose to another.12
12
If Mr. Otake and Ms. Panagakos were called to testify, communications between them and
Miske regarding, e.g., what advice—if any—they conveyed to Miske concerning the need for
character letters to be accurate would fall under the crime-fraud exception because the attorney-
client privilege does not extend to communications “in furtherance of intended, or present,
continuing illegality.” United States v. Hodge & Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977);
United States v. Zolin, 491 U.S. 554, 563 (1989). To invoke the crime-fraud exception, the
United States has the burden of showing: (1) that “the communications were in furtherance of an
intended or present illegality;” and (2) “that there is some relationship between the
communications and the illegality.” In re Grand Jury Proceedings, 87 F.3d 377, 380 (9th Cir.
1996). The attorney-client privilege is lost “when a client gives information to [an attorney] for
the purpose of committing or furthering a crime or fraud.” United States v. Ruhbayan, 201
F.Supp.2d 682, 686 (E.D. Va. 2002) (Government made prima facie showing of obstruction of
justice so as to allow discovery of communications under the crime-fraud exception; “defendant
tricked his former attorney … into providing perjured testimony”). For the crime-fraud
exception to apply, “[t]he attorney need not himself be aware of the illegality involved; it is
enough that the communication furthered, or was intended by the client to further, that
illegality.” United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir. 1971).
30
V. CONCLUSION
Given the totality of the circumstances, the “fair, efficient and orderly
administration of justice,” United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.
2007), requires disqualification of Mr. Otake and Ms. Panagakos. As
demonstrated by the hiring of Mr. Kennedy following the United States’
discussions with Mr. Otake and Ms. Panagakos beginning in August 2022, it
appears Miske has sought to stem the fallout from his decision to use them as a
conduit to obstruct justice. Moreover, while Mr. Otake and Ms. Panagakos are
intimately familiar with the evidence in this case, no substantive motions or
motions in limine have been filed. The litigation, to date, has exclusively
involved motions filed by the defense related to discovery, which the United States
has produced timely.
Additionally, although the case involves a high quantity of information and
number of witnesses, the nature of the facts and evidence is not so insurmountably
complex that Mr. Kennedy—who has now been counsel of record for two
months—cannot get up to speed in the next several months. This is particularly
true in light of the fact that counsel for the other trial defendants—some of whom
have a joint defense agreement with Miske—will not be impacted by the
disqualification of Mr. Otake and Ms. Panagakos. Thus, their institutional
31
knowledge of the facts will not be lost and remains available to Miske and his
counsel.
For all the reasons discussed herein, and mostly importantly those identified
by Ms. Panagakos when confronted with the same situation involving a different
client, the United States moves for the disqualification of both Mr. Otake and Ms.
Panagakos. See Rivera, 17-CR-00301-SOM, Dkt. No. 110 at Page ID # 1274.
DATED: January 13, 2023, at Honolulu, Hawaii.
CLARE E. CONNORS
United States Attorney
District of Hawaii
By /s/ Michael Nammar

MICHAEL D. NAMMAR
MICAH SMITH
MARK A. INCIONG
Assistant U.S. Attorneys
32
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 was served on the following at their last
known addresses:
Served Electronically through CM/ECF:
Thomas Otake, Esq. Attorneys for Defendant

Lynn Panagakos, Esq. MICHAEL J. MISKE, JR.
Michael Jerome Kennedy, Esq.
DATED: January 13, 2023, at Honolulu, Hawaii.
/s/ Rowena Kang

__________________________
Rowena Kang

USA Motion To Disqualify Defense Counsel, CR. NO. 19-00099-DKW-KJM, District of Hawaii

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Case 1:19-cr-00099-DKW-KJM Document 729 Filed 01/13/23 Page 1 of 40 PageID.

CLARE E. CONNORS #7936

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

UNITED STATES OF AMERICA’S MOTION

II. Facts ................................................................................................................ 7

a. Miske’s Arrest ...................................................................................... 7

b. The Character Letters ........................................................................... 7

c. The Detention Hearing ......................................................................... 8

d. The Fabricated K.N. Character Letter (Counts 1 and 21) .................. 10

e. The Altered L.K. Character Letter (Counts 1 and 22) ....................... 12

f. The New Obstruction Charges ........................................................... 14

g. Miske’s 2018 Communications with Cooperator A Concerning

III. Legal Standards ............................................................................................ 15

a. Right to Assistance of Conflict-Free Counsel.................................... 15

b. Rule Against Advocates as Witnesses ............................................... 18

c. Rule Against Unsworn Witnesses ...................................................... 20

IV. Analysis ........................................................................................................ 22

a. Mr. Otake and Ms. Panagakos Cannot Provide Miske the

b. The Rules Against Advocates as Witnesses and Unsworn

Agena v. Cleaver-Brooks, Inc.,

United States v. Abarca,

United States v. Kenney,

United States v. Pruitt,

To protect the integrity of this proceeding, the United States moves to

multiple, significant conflicts requiring their disqualification.2

The conflicts arise from conduct engaged in by Miske, including conduct

States anticipates its evidence at trial will show:

 Ms. Panagakos is a percipient witness to Miske purportedly viewing and

his co-defendants to a speedy trial. The United States, however, is obligated to

protect the defendant’s constitutional rights, and avoid non-waivable post-

conviction claims, including a claim for ineffective assistance of counsel. See

for disqualification if appropriate.”). Based on the totality of the circumstances,

and Ms. Panagakos from further representation of Miske.

be concerned about reputational, disciplinary, or other consequences for their

advice-of-counsel defense). Likewise, Miske’s communications to a co-

conspirator in 2018—while Miske was at the height of running the Miske

Panagakos) purportedly showed him “paperwork” about a witness “flipping” and

incrimination (e.g., not speak to anyone “inside”), which Miske immediately

shared with a trusted longtime co-conspirator, could cause Ms. Panagakos to

“house counsel” for the Miske Enterprise).

As Ms. Panagakos herself explained in 2018, while seeking to withdraw as

criminal proceeding in which she represented him, “there are . . . so many

questions I could think of as to why I have a conflict in providing advice to [client]

As Ms. Panagakos recognized in Rivera, given the incalculable number of ways

at trial, requiring their disqualification under the longstanding prohibition that

for testimony from Mr. Otake and Ms. Panagakos.4

“unsworn witness” rule also requires their disqualification as trial counsel. At

and Ms. Panagakos allegedly participated, as well as evidence concerning their

have unique, firsthand knowledge—including events that are direct proof of

charged crimes by Miske and a trial co-defendant—will cause jurors to wonder

Mr. Otake and Ms. Panagakos could—through argument, cross-examination,

Panagakos’ standing as courtroom advocates, jurors may unduly credit their

unsworn testimony (i.e., effectively allowing impermissible vouching).

b. The Character Letters

On August 7, 2020, Miske’s counsel signed and submitted a memorandum in

No. 141-4 (“the Filed Character Letters”). The Opposition Memorandum

Miske’s release to house arrest, https://www.ilind.net/2020/08/09/defense-lawyers-

seek-mike-miskes-release-to-house-arrest (last visited Jan. 12, 2023).

c. The Detention Hearing

No. 609 (“Detention Hearing Transcript”) at p. 4.