Memorandum in Opposition by Martin Kao re 132 Motion United States' Motion — United States v. Kao (Dkt. 136, D. Haw. No. 1:21-cr-00061)

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U.S. District Court for the District of Hawaii · No. 1:21-cr-00061-LEK · Doc. 136 · 2024-08-15 · Docket on CourtListener

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LAW OFFICE OF VICTOR J. BAKKE  
 
VICTOR J. BAKKE 
 
5749 
700 Bishop Street, Suite 2100 
Honolulu, Hawaii  96813 
Telephone: (808) 369-8170 
Facsimile: (808) 369-8179 
E-Mail: vbakke@bakkelawfirm.com 
 
Attorney for Defendant 
MARTIN KAO 
 
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 JAO 
MEMORANDUM IN 
OPPOSITION TO UNITED 
STATES’ MOTION FOR ORDER 
AUTHORIZING APPLICATION 
OF DEFENDANT’S BOND 
DEPOSIT TO PAYMENT OF 
SPECIAL ASSESSMENT AND 
RESTITUTION; DECLARATION 
OF COUNSEL; CERTIFICATE 
OF SERVICE 
MEMORANDUM IN OPPOSITION TO UNITED STATES’  
MOTION FOR ORDER AUTHORIZING APPLICATION  
OF DEFENDANT’S BOND DEPOSIT TO PAYMENT OF  
SPECIAL ASSESSMENT AND RESTITUTION 
 
COMES NOW, Defendant MARTIN KAO (“Defendant”), by and through 
his undersigned counsel, and hereby respectfully submits his Memorandum in 
Opposition to the United States’ Motion for Order Authorizing Application of 
Case 1:21-cr-00061-LEK     Document 136     Filed 08/15/24     Page 1 of 4  PageID.1140

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Defendant’s Bond Payment of Special Assessment and Restitution (ECF No. 132) 
as follows: 
I. 
DISCUSSION 
28 USC Section 2024 – Withdrawal,  states that no money deposited under 
section 2041 of this title shall be withdrawn except by order of the Court. 
As of the filing date of the government’s motion, there has been no request 
made by the Defendant or anyone else to have the bail released. 
Instead, the Government has filed an anticipatory motion pursuant to 28 
U.S.C. § 2044, to block the release of the bail money to the Defendant, or other 
parties, on the grounds that once the Defendant has surrendered, that the money 
should be held by the Court and applied to the Defendant’s anticipated court 
ordered financial obligations. 
Although the Court has authority pursuant to 28 U.S.C. § 2044, to hold and 
distribute the bail money, this Court cannot grant the Government’s motion 
because the issue is not ripe for adjudication and because the Government has 
failed to meet the necessary conditions required by Section 2044. 
28 U.S.C. § 2044 clearly states that “ . . . on motion of the United States 
Attorney, the court shall order any money belonging to and deposited by or on 
behalf of the defendant with the court for the purposes of a criminal appearance 
bail bond (trial or appeal) to be held and paid over to the United States attorney to 
Case 1:21-cr-00061-LEK     Document 136     Filed 08/15/24     Page 2 of 4  PageID.1141

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be applied to the payment of any assessment, fine, restitution, or penalty imposed 
upon the defendant.”  28 U.S.C. § 2044 (emphasis added). 
Specifically, the Government’s motion is premature because Section 2044 
only allows the hold of the money for specific purposes which do not exist at the 
time of filing.  Specifically, Defendant has not been sentenced and therefore there 
is no Court ordered assessment, fine, restitution, or penalty imposed upon the 
defendant that would allow the Court to hold the bail and distribute it to the U.S. 
Attorney as requested in the Government’s Motion. 
The Government’s motion is also premature in that it requests that this Court 
distribute to the Government the full $2 million dollars without any justification or 
accounting as to what the Defendant’s actual obligations are.  This Court cannot 
sign an order giving the money to the U.S. Attorney and then hope the prosecutor 
gives the Defendant a refund later if it turns out that the $2 million dollars 
exceeded the Defendant’s actual court ordered obligations.  
The Government has also failed to satisfy the condition of Section 2044 that 
requires that the posted money belonged to the Defendant.  In its motion, the 
Government does not identify the source of the money and does not address the 
issue of possible third-party claims to the funds such as marital assets and/or 
communal property since Defendant was married at the time the funds were 
deposited with the Court. 
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Although not directly on point, this issue was discussed briefly in United 
States v. Sortini, 497 Fed. Appx. 738, 739 (9th Cir. 2012) wherein the Court 
recognized that there may be situations in which Section 2044 may not apply if the 
money was incumbered prior to it being posted with the Court. 
II. 
CONCLUSION 
 
For the reasons set forth above, this Court must deny the Defendant’s 
request motion because it is premature and/or does not satisfy the requirements of 
Section 2044. 
 
DATED:  Honolulu, Hawaii, August 15, 2024. 
/s/ Victor J. Bakke  
 
  
 
 
 
 
 
VICTOR J. BAKKE 
 
Attorney for Defendant 
 
 
 
 
 
MARTIN KAO 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Case 1:21-cr-00061-LEK     Document 136     Filed 08/15/24     Page 4 of 4  PageID.1143

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