RESPONSE by USA as to Martin Kao re 93 OBJECTIONS to and APPEAL from Dispositive Order… — USA v. Kao (Dkt. 96)

Summary

The United States of America's Response to Defendant Martin Kao's Appeal (ECF No. 93); Certificate of Service, Document 96, filed 03/23/23 in CR. NO. 21-00061 LEK (D. Haw.), responding to Kao's appeal of the Magistrate Judge's Order (ECF No. 92) on PacMar Technologies LLC's Motion for Return of Property (ECF No. 82). The government takes no position on the merits and states that it seized the cell phone on or about September 30, 2020 and that it is evidence in this prosecution and in the bank fraud prosecution in CR 23-00003 LEK. It states that Kao pled guilty to all charges without a plea agreement and is scheduled for sentencing on September 7, 2023, and that the extracted data contains business data and personal data. If the Court orders segregation of that data, the government asks that a special master be appointed. Craig S. Nolan signs with /s/.

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CLARE E. CONNORS #7936 
United States Attorney 
District of Hawaii 
CRAIG S. NOLAN 
Room 6-100, PJKK Federal Building 
300 Ala Moana Boulevard 
Honolulu, Hawaii 96850 
Telephone:  (808) 541-2850 
Facsimile:  (808) 541-2958 
E-Mail:  Craig.Nolan@usdoj.gov
Attorneys for the Plaintiff 
UNITED STATES OF AMERICA 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF HAWAII 
UNITED STATES OF AMERICA, 
             Plaintiff, 
              vs. 
MARTIN KAO, 
             Defendant. 
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CR. NO. 21-00061 LEK 
THE UNITED STATES OF 
AMERICA’S RESPONSE TO 
DEFENDANT MARTIN KAO’S 
APPEAL (ECF NO. 93);  
CERTIFICATE OF SERVICE 
THE UNITED STATES OF AMERICA’S RESPONSE TO  
DEFENDANT MARTIN KAO’S APPEAL (ECF NO. 93) 
Case 1:21-cr-00061-LEK     Document 96     Filed 03/23/23     Page 1 of 5  PageID.801

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The United States of America hereby responds to Defendant Martin Kao’s 
Appeal (ECF No. 93) of the Magistrate Judge’s Order (ECF No. 92) on PacMar 
Technologies LLC’s Motion for Return of Property (ECF No. 82).  The 
government takes no position on the merits of PacMar’s motion or Defendant 
Kao’s appeal.  To assist the Court, the government states the following: 
1. Pursuant to warrant, the government seized the cell phone at issue on or
about September 30, 2020, from Defendant Kao at the offices of the Navatek
companies that are now PacMar in connection with the arrest of Defendant
Kao.
2. The cell phone constitutes an instrumentality and evidence, and contains
evidence, relevant to this wire fraud and money laundering prosecution, and
to the bank fraud prosecution in CR 23-00003 LEK.
3. Defendant Kao pled guilty to all charges in this matter without a plea
agreement, and is scheduled for sentencing on September 7, 2023.
4. The bank fraud matter is scheduled for trial on November 6, 2023.
5. After seizing the cell phone, the government used forensic tools to extract
data from the cell phone.
6. The extracted data set contains both business data and personal data.
Case 1:21-cr-00061-LEK     Document 96     Filed 03/23/23     Page 2 of 5  PageID.802

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7. Subject to the Court’s direction, the government can produce to PacMar,
Defendant Kao, and/or any special master that the Court may appoint (a) the
raw data extracted from the cell phone and/or (b) a Cellebrite “report”
containing a Cellebrite “reader” and extracted data recognized by the
Cellebrite forensic tool.  A party can use the reader to view, search, and
organize the data.  (The Cellebrite tool does not recognize all raw data
extracted from cell phones.)
8. PacMar agrees that the production of the extracted raw data and the
Cellebrite report would satisfy its request for return of the cell phone, and
the Magistrate Judge ordered the production of data rather than the return of
the cell phone, itself, given PacMar’s agreement and the status of the two
prosecutions.
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Case 1:21-cr-00061-LEK     Document 96     Filed 03/23/23     Page 3 of 5  PageID.803

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9. To the extent that the Court orders the segregation of business data from
personal data before data is produced to PacMar, the government requests 
that a third-party, such as a special master, be appointed by the Court 
because such task would be unduly burdensome if placed upon the 
government.  Furthermore, PacMar and/or Defendant Kao, and not the 
government, should bear the costs incurred for such a process because the 
government’s obligation is merely to return property to its owner at the 
conclusion of proceedings and the instant dispute between PacMar and 
Defendant Kao is a part of a long-running business and legal dispute 
between the two.
DATED:     March 23, 2023, at Honolulu, Hawaii.
CLARE E. CONNORS 
United States Attorney 
District of Hawaii 
By /s/ Craig S. Nolan 
    CRAIG S. NOLAN 
    Assistant U.S. Attorney 
Case 1:21-cr-00061-LEK     Document 96     Filed 03/23/23     Page 4 of 5  PageID.804

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 address: 
Served via Electronically through CM/ECF to Counsel, including: 
Keith M. Kiuchi 
 
 
 
 
kkiuchi106@cs.com 
Counsel for MARTIN KAO 
DATED: March 23, 2023, at Honolulu, Hawaii. 
/s/ Desirai Tolbert 
United States Attorney’s Office 
District of Hawaii
Case 1:21-cr-00061-LEK     Document 96     Filed 03/23/23     Page 5 of 5  PageID.805

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