Attorney Alexander Silvert, author of “The Mailbox Conspiracy,” joins producer/host Coralie Chun Matayoshi to discuss the jury’s verdict in the Michael Miske case, including elements of racketeering and conspiracy, why proof of Jonathan Fraser’s death was not necessary for the conspiracy charge, the forfeiture phase of the trial, what sentence Miske is likely to receive, and why the government did not seek the death penalty in this case.
A jury who listened to almost 100 days of testimony just found Michael J. Miske guilty of 13 out of 16 counts including racketeering conspiracy and murder in aid of racketeering in connection to the 2016 killing of Johnathan Fraser. All of his original co-defendants struck plea deals and virtually all agreed to testify against Miske.
Q. According to the Government, Miske was the head of the “Miske Enterprise” that engaged in racketeering and conspiracy. First, what is racketeering?
Racketeering is a type of organized crime involving a coercive, fraudulent, extortionary, or otherwise illegal coordinated scheme or operation (a "racket") to repeatedly or consistently collect a profit. The Government argued that the “Miske Enterprise” operated in the business world (e.g. Kamaaina Termite & Pest Control, M Nightclub, used car business) and underworld (e.g. extortion, intimidation).
Q. Nine of the 16 counts against Miske were conspiracy counts. What is a conspiracy?
Conspiracy is an agreement between two or more people to commit one or more crimes at some time in the future. Conspiracy is a separate offense than committing the crime itself and it doesn’t matter whether the crime agreed upon was actually committed or not, so long as there was an agreement to commit a crime and substantial steps (overt acts) were done to commit the crime. The law seeks to punish conspiracy as a substantive crime separate from the intended crime because when two or more persons agree to commit a crime, the potential for criminal activity increases, and as a result, the danger to the public increases. Therefore, the very act of making an illegal agreement with criminal intent along with an overt act, is considered sufficiently dangerous to warrant charging conspiracy as an offense separate from the intended crime.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. A person may be a member of a conspiracy even though they do not know all of the purposes of or participants in the conspiracy. A co-conspirator is charged for all reasonably foreseeable acts committed by the conspiracy, whether or not they were aware of those acts or those co-conspirators, unless they withdrew from the conspiracy before those acts were committed.
Q. In this case, it seemed that the jurors struggled early on in their deliberations to figure out how much a defendant needed to know about the acts of other co-conspirators in order to be guilty of the conspiracy.
In one note, jurors asked if condoning an act after the fact was the same as agreeing to an act of racketeering. Judge Derrick Watson replied by directing jurors to jury instruction number 26, which lays out the elements of a racketeering conspiracy count. In another note, jurors said they were having trouble agreeing on how to interpret elements of a conspiracy: “Some believe that in order for the defendant to directly conspire, he must condone, participate or benefit from one or more specific acts of robbery or drug trafficking.” “Others believe that the general protection provided by the defendant to members of the conspiracy satisfy the first element of Instruction 26 even though the defendant did not have specific knowledge or participate in most robberies or drug transactions.”
Q. What if you can’t prove an agreement between 2 or more people to commit a crime (e.g. one defendant acted alone so no conspiracy)?
If one defendant acted alone, then there is no conspiracy. In this case, the government only needed to show that Miske agreed with at least one other person to commit the crime. Even if the crime was never carried out, he could still be found guilty as long as there was an agreement and at least one overt act was committed to further the crime.
Q. Why did the Government have to prove that each co-conspirator committed at least 2 overt acts as part of the enterprise?
For a Racketeer influenced and Corrupt Organizations Act (RICO) conspiracy, which is different from a general vanilla conspiracy, you need two overt acts. It is, after all, an “enterprise” that committed multiple criminal acts, not just one conspiracy to commit one crime.
Q. How did the Government prove the conspiracy?
All his original co-defendants struck plea deals and virtually all agreed to testify against Miske. A key witness for the Prosecution was Jacob Smith who testified that he was “on call” to commit assaults and robberies at Miske’s request. Prosecutors said Miske would speak in code, referring to his orders in baseball terms like first base meaning assaults, second base meaning sending someone to the hospital, third base meaning putting someone in a coma, and a homerun meaning murder. He described a time when Miske invited the owner of a rival nightclub into his office and beat him so badly that the man’s “face looked like hamburger meat.” “It didn’t matter if it was a customer, if it was a stranger, if it was a police officer. The defendant embraced his reputation for violence.”
While the Defense questioned the credibility of known criminals looking for a lighter sentence through plea deals, the Government’s strategy was to try to boost the credibility of their witnesses by introducing evidence that corroborated any part of a witness’s testimony. Having witnesses corroborate parts of each other’s testimony, and the sheer number of cooperating witnesses who all pointed the finger at Miske, convinced the jury that they all could not be lying and there must be some truth to their testimony. As the adage goes: if you throw enough spaghetti at the wall, some of it will stick.
Q. The Defense tried to propose alternative theories to Fraser’s disappearance and made much of the fact that his body was never found. Miske’s lawyer Michael Kennedy claimed that the government’s circumstantial evidence surrounding Fraser’s death is “merely speculation” and that “prosecutors and the FBI have relied upon the unreliable here, and when you rely on the unreliable, what you end up with is reasonable doubt.” How did the Government address this?
The Government acknowledged that it had not presented evidence showing who killed Fraser, how he was killed, where he was killed or what happened to his body but told jurors that those questions didn’t need to be answered because details of Fraser’s killing weren’t needed to prove the elements of conspiracy which Miske was charged with. Jurors only needed to find beyond a reasonable doubt that Miske intended Fraser to be killed in exchange for money, aided and abetted someone else in the killing who was a member of his criminal enterprise, and acted with the purpose of maintaining his own reputation within the group. In other words, as long as Miske agreed to have Fraser killed with another member of his criminal enterprise, and two overt acts were undertaken to achieve that goal, it didn’t matter whether they actually succeeded in killing Fraser to be guilty of RICO conspiracy for the attempted murder of Fraser. Thus, it was not relevant whether a body was found or not or even if the killing actually occurred.
Interestingly, the jury went beyond the conspiracy count and found Miske guilty of Count 2 (murder in aid of racketeering) which means they believed that the murder of Fraser actually occurred. Here is the language of Count 2: “On or about July 30, 2016, within the District of Hawaii, for the purpose of maintaining and increasing position in the Miske Enterprise, an enterprise engaged in racketeering activity, MICHAEL J. MISKE, JR., aka "Bro," the defendant, and others known and unknown, did intentionally and knowingly murder Johnathan Fraser, in violation of Hawaii Revised Statutes § 707-701.5, and did aid and abet the same.”
Q. What is reasonable doubt?
The Prosecutor must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. If the jury looks at all of the evidence and has a reasonable doubt, or isn’t convinced one way or another, then they have to acquit. All the defense needs to do is put reasonable doubt into the minds of jurors – that it’s possible that Miske was not guilty of the crimes he was charged with.
Q. The same jury will start a second phase of the trial to determine whether property should be forfeited as fruits of the crimes committed. What’s this all about?
A forfeiture hearing determines whether the government can take property belonging to Miske that is related in some manner to his criminal enterprise. This could include any monies, drugs, or weapons seized, as well as real personal property, like Miske’s home, cars, or business assets. The burden is on the government to prove that these items were either associated directly with Miske’s crimes and/or were the proceeds of his crimes. Miske has the right to dispute the government’s claims but would have to show that the property was legally obtained through legitimate means. This portion of the trial will most likely only take a week or two, as all of the evidence already heard by the jury during the guilt phase can be used as evidence as well without having to call any witnesses again.
Q. Several of the counts require mandatory life sentences. How much jail time is Miske likely to get?
Miske is looking at a mandatory minimum sentence of life in prison just for Count 7 (Murder-for-Hire Conspiracy) and the judge has no discretion to decrease this sentence absent cooperation by the defendant (e.g. the whereabouts of Fraser’s body if Miske knows). The other counts carry sentences of 20 years to life in prison. Over the next three months, a sentencing report (which is not available to the public) will be prepared for the judge which will provide more exacting information as to the sentence the law requires. Given Miske’s age, and the types and number of crimes he was found guilty of, it is likely he will spend the rest of his life in a federal prison. Since there is no parole in the federal sentencing system, the full sentence will likely be served. An inmate can earn very limited “good time credit while incarcerated if they behave, follow all the rules, and take various classes offered by the Bureau of Prisons.
Q. Some of the counts in the indictment made Miske possibly eligible for the death penalty. How does that process work and why did the Government decide not to seek the death penalty in this case?
Miske had faced four capital charges — murder in aid of racketeering, murder for hire conspiracy resulting in death, kidnapping using a facility of interstate commerce resulting in death, and conspiracy to commit kidnapping using a facility of interstate commerce. In these cases, the local U.S. Attorney submits a recommendation to the U.S. Department of Justice in Washington D.C. to review before being submitted to a death penalty committee for a recommendation to the U.S. Attorney General for a final decision on whether to seek the death penalty or maximum sentence of life in prison. On July 1, 2021, the U.S. Department of Justice issued a moratorium on executions while death penalty policies were being re-examined in light of current public sentiment. Although capital punishment was abolished by Hawaii’s legislature in 1957, two years before statehood, it is still a possibility under federal law regardless of Hawaii state law. There have been two federal death penalty cases brought to trial in Hawaii in the last twenty years, neither which resulted in the imposition of the death penalty by the jury.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.