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Convicted racketeering boss Michael Miske Jr. was found unresponsive in his cell in Honolulu’s Federal Detention Center on Dec. 1, a month before he was due to be formally sentenced to life in prison, the mandatory minimum sentence for several of his crimes. 

At sentencing, U.S. District Court Judge Derrick Watson was set to address the government’s move to seize more than $25 million of assets after the jury found they had been acquired and maintained using proceeds that came directly or indirectly from Miske’s racketeering activities.

The immediate unanswered question is what legal effect his unexpected death has on the criminal case.

The answer is simple, straightforward and startling.

Miske’s death means the case against him will disappear. 

All of it. From the original indictment in 2019 through the three subsequent updates, the six months of complex trial proceedings, the jury’s repeated verdict of guilty on 13 charges, and the jury verdict requiring him for forfeit his home, vehicles, bank accounts and other assets.

Miske’s indictments, trial, convictions and forfeitures will all disappear in a legal sense, as if they had never happened. 

This is the result of a legal doctrine, abatement ab initio, which requires vacating all judicial findings and orders back to the very beginning of the case. 

is a doctrine routinely followed in all federal courts, as well as the courts of most states.

A , which includes the federal courts in several northeastern states, traced the history of the doctrine to a concern with a defendant’s right to due process.

“The notion is that the criminal defendant’s death precludes the conviction from being tested on appeal despite the criminal defendant’s attempt to invoke the statutory right to do so,” and “it is against the interests of justice for a person to be convicted without resolution on the merits of any appeal.”

The 1st Circuit noted that both federal prosecutors and defense lawyers agreed that the abatement doctrine, if applied in the case, would require criminal forfeiture orders to be vacated along with any convictions.

The court noted that this doctrine can be traced back to the late 19th century, and was firmly established in all federal courts by the middle of the last century.

“He’s technically not convicted until he’s been sentenced,” veteran island defense attorney, Victor Bakke, said Monday. “Miske’s right to appeal didn’t even start until after his sentencing, and the conviction isn’t final until his appeals are exhausted.”

Retired federal defender Alexander Silvert agreed. 

“Because Miske died pending sentencing, and before an appeal could be filed, his conviction is not final,” Silvert said on Monday, and will have to be vacated and set aside.

Silvert said the concept goes all the way back to an old Christian concept that “you don’t want the guy to die and be judged by God based on a conviction that isn’t final.”

“It’s good law,” Silvert said, indicating it is widely accepted.

Although these circumstances do not arise often, it’s a routine matter that doesn’t involve a question of discretion for the judge to resolve.

Late Monday, Miske’s attorneys filed a motion to vacate the jury’s verdict as well as dismiss the indictments. The motion also argues that assets and money from the sale of some of them being held by the Department of Justice be returned. According to the motion, the sale of a property in Hawaii Kai brought $611,123 and the sale of the FV Rachel, a commercial fishing vessel, netted $676,785. The government also seized artwork, a Ferrari and cash and cashier’s check from various accounts.

“Since the indictments must be dismissed and the verdicts abated, the government can no longer retain custody of these seized items pursuant to any criminal forfeiture statute,” the motion argues. “Therefore, these seized items must be returned.”

At least one federal case in Hawaii was dismissed under similar circumstances. Robert Lee Tuck Chong, who was known as “China,” pleaded guilty in January 2000 in the murder of a 33-year-old man in a park near Makaha over a $100 drug debt. But in December 2001, the 9th U.S. Circuit Court of Appeals ordered a pending appeal dismissed, and directed his guilty plea and original indictment be vacated after Chong died, reportedly by suicide. 

However, the doctrine has been criticized for trampling on the rights of victims, some of which require a conviction before victims can access restitution or other benefits. At least one state has eliminated the use of Abatement ab initio in their courts.

Although the jury’s findings regarding forfeiture of Miske’s assets are almost certain to be vacated along with the jury verdict and the indictments, the government can bring a new civil forfeiture lawsuit based on the same evidence that the assets were obtained using the proceeds of Miske’s criminal activities.

Whether the elimination of the indictments and convictions will provide any advantage that could enable Miske’s family and beneficiaries to retain any portion of the forfeited assets is unknown at this time.

Most of Miske’s personal property and business assets were placed in a revokable living trust created in 2008, which was updated in 2016 immediately after the death of his only son, Caleb Miske. At least one separate trust was also set up to benefit Caleb’s infant daughter.

The trust, a copy of which was filed in court in 2021 as part of the criminal case, named three successor trustees designated to take control of both Miske’s trust and his granddaughter’s trust in the event of Miske’s death.

Those successor trustees, in order, are Jason Yokoyama, one of Miske’s co-defendants, who pleaded guilty to one count of federal wire fraud and has been free pending sentencing; Alen Kaneshiro, one of Miske’s regular attorneys who represented Miske and a number of his associates in criminal matters; and John Stancil, Miske’s half-brother and co-defendant, who is also awaiting sentencing.