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During a hearing in federal court on Monday, prosecutors and defense attorneys sparred over a motion asking the judge to reconsider a 2021 ruling that has kept John Stancil, the half-brother of accused racketeering boss Michael J. Miske Jr., behind bars pending trial.

Stancil’s attorney argued that releasing him is the simplest and easiest solution to a host of problems he has had at Honolulu’s Federal Detention Center, although release was opposed by prosecutors and was apparently not supported by a confidential pretrial services evaluation of the option.

Magistrate Judge Kenneth Mansfield took the matter under advisement, saying he would issue a decision as soon as possible.

About the only thing completely clear at the end of the hourlong hearing was that all the parties — federal prosecutors, defense attorneys and Mansfield himself — expressed frustration that the complexities of this case make it difficult, if not impossible, to agree on reasonable accommodations to please everybody within the constraints of the law.

A Massive And Complex Case

Miske, the former owner of a number of local businesses, including Kamaaina Termite and Pest Control, and the popular M Nightclub in downtown Honolulu, was named in a 22-count federal indictment along with 10 initial co-defendants in July 2020.

The charges include murder-for-hire conspiracy, racketeering conspiracy, kidnapping, assault in aid of racketeering, drug trafficking conspiracy, firearms violations and bank fraud.

Updated indictments have added two more co-defendants. Meanwhile, six of the original 10 co-defendants have pleaded guilty and are cooperating with prosecutors, and another appears to be in plea negotiations. At least eight defendants with ties to the Miske organization were charged separately and have also pleaded guilty.

The criminal case was declared “complex” not long after the charges were filed. So far, 29 rounds of disclosure in the process of discovery have included an estimated 2.2 million pages of documents; more than 50 terabytes of digital data, including audio and video recordings; data from multiple telephone and social media accounts; and records of number investigative interviews, business records, tax files and other documents.

All concede it has produced more evidence than any other case in this federal district, and by some accounts more than any criminal case currently being heard anywhere in the country.

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Detention Grievances

Stancil’s motion recited a litany of specific grievances and legal issues the defendant and his attorneys have faced while trying run a gauntlet of petty, arbitrary and often conflicting policies, practices, and decisions by guards, managers, and legal counsel at Honolulu’s Federal Detention Center which, they say, often fly in the face of prison regulations.

Terri Fujioka-Lilley and co-counsel Walter J. Rodby argued that the end result has been a denial of Stancil’s constitutional right to due process and right to effective legal counsel.

Given past problems gaining access to their client and providing him sufficient computer time to review evidence in the case, they argued that the best solution would be to simply release Stancil into house arrest in his parents’ Waimanalo home, with GPS tracking and other measures to assure he remains there 24/7.

If that is not possible, they suggested, at minimum, that Stancil be allowed to have a computer for his personal use for reviewing evidence files and related uses.

Limited Authority

At the beginning of the hearing, Mansfield said he had read all the submissions by both parties and had reviewed legal cases they cited. Although he seemed sympathetic to Stancil’s complaints, Mansfield referred to the traditional deference courts have given to prison administrators, which limits his authority to second-guess decisions of facility staff affecting conditions of confinement.  

“I have to be sure I can give the relief you are asking for,” Mansfield said. “I’m looking for authority for taking action.”

Similarly, Mansfield said he felt hamstrung by a lack of authority to require the detention center to accommodate meetings of multiple co-defendants and their attorneys as part of a joint defense agreement.

“Can defendants sign a joint defense contract that creates constitutional rights, and imposes significant obligations, on the Federal Detention Center?” Mansfield asked.

Rodby and Fujioka-Lilley each acknowledged they could not cite any previous court decisions that would help Mansfield’s deliberation.

Prior Arrangements Disrupted

Much of the discussion of Stancil’s right of access to his legal counsel and computer time necessary to play an effective role in his own defense had been hashed out previously. His attorney at the time filed a motion in April 2021 seeking . 

Stancil’s motion was withdrawn following apparent agreements reached in discussions with FDC Warden Estelle Derr.

The changes that resulted, although not ideal, greatly increased Stancil’s weekly access to legal resources and computer time. However, that changed two months ago, according to his attorneys.

On May 10, Stancil was pulled from an art class without warning or explanation as he was painting a picture of a deep blue sky and a few white clouds, and taken directly to the Special Housing Unit, where prisoners typically spend 23 hours a day in isolation for violations of detention center rules, Kona-based attorney Fujioka-Lilley told Mansfield during the hearing. 

Prior to that time, he had been held in the general population since his arrest in July 2020. During that time, Stancil was not written up for any rule violations of any kind, Fujioka-Lilley stressed.

Most of his possessions, including several boxes of legal papers he had accumulated, were confiscated during the move. Although detention center officials assured Stancil’s attorneys that his move to SHU was for “administrative” rather than disciplinary reasons, punitive conditions within the unit applicable to discipline cases are imposed uniformly on all while being held there.

Stancil remained in the Special Housing Unit for a month before a decision was made to house him with Miske, who is separated from other defendants and cooperating witnesses in the case. The government argued that this was sufficient to make Stancil’s request legally moot.

But Stancil has been unable to meet with his attorneys during most of the two months since he was placed in SHU, or else has been shackled in a manner that prevents him from effectively working with his legal counsel in reviewing evidence in preparation for trial.

Being housed with Miske appears to provide a temporary solution, but it is just that, temporary, Rodby said during Monday’s hearing.

“How can we get assurances this isn’t going to happen again?” he asked.

Rodby also underscored that Stancil’s defense lost nearly two full months even as they prepare for a trial currently scheduled to begin in January.

Assistant U.S. Attorney Mark Inciong, who represented the government in the hearing, admitted that the severe limitations on Stancil’s ability to meet with his attorneys, and lack of sufficient access to a computer able to open evidence files for review, have been less than ideal.

“But it is never ideal where an attorney has a client in custody through the pretrial period,” Inciong said. “Conditions are never ideal. The question is what is legally sufficient.”

Inciong then abandoned the usual formal neutrality of courtroom discourse to accuse defense attorneys of imputing “sinister reasons” to the himself and other government attorneys based on “baseless accusations.”

He went on the attack against Rodby and Fujioka-Lilley for arguing Stancil’s release is the appropriate cure for difficulties in preparing for trial in the face of the volume of evidence being released in discovery.

“What have they been doing these last three years,” Inciong said rhetorically, implying that Stancil’s two attorneys are trying to shift the blame for their own inadequate trial preparation. 

And Inciong responded sharply to their characterizing evidence against Stancil as “weak,” based in part on the fact that one of the targets of a murder-for-hire plot he allegedly took part in was not actually harmed. 

“It’s a conspiracy,” Inciong said with emphasis, “ and the crime is the agreement. The actual crime doesn’t need to happen.”

Fujioka-Lilley responded to what she termed the government’s “‘bunch of lazy liars’ argument.” And she went on to tick off a series of specific instances in which detention center staff ignored agreements or made arbitrary decisions that limited Stancil’s access to legal counsel and his right to a fair trial.

She and Rodby said the problems at the detention center stem from a basic problem. 

“The right hand doesn’t know what the left hand is doing,” Rodby said. That seems to be another point on which all the parties could agree.

Hints Of Tension Between Defendants

Rodby and Fujioka-Lilley complained that when they contacted prosecutors to find out the justification for Stancil’s move to SHU and what could be done to reverse it, they were told simply that no information could be released, and so there was nothing to discuss.

However, two bits of information have been disclosed that appear to shed some light on what might have happened. 

Prosecutors, in their response to Stancil’s latest motion, made an oblique reference to what triggered the move.

“In May 2023…concerns were brought to the government’s attention about inmate conduct at the FDC, and in light of those concerns, the government asked the FDC to fully enforce the separations between Stancil and other co-defendants,” resulting in his being moved to the special housing unit.

During Monday’s hearing, Rodby disclosed “an altercation” between Jacob “Jake” Smith, who was charged separately from the Miske case but has confessed to being part of Miske’s criminal organization, and Harry Kauhi, one of the Miske co-defendants who has also flipped and is cooperating with prosecutors. 

Following that altercation, Kauhi requested to be moved from the general detention center population into witness protection, Rodby said.

A check of the Federal Bureau of Prisons’ confirmed that records of Kauhi’s location with the BOP system have been removed. All information about two other key witnesses who have also pleaded guilty and are expected to be key witnesses against Miske and others, and , has similarly been excised from the online locator. 

During a hearing to review and approve Bermudez’ change of plea and associated written plea agreement, Judge Derrick Watson noted that Bermudez was being held in an undisclosed location for his personal safety.