Sentencing Memorandum by Martin Kao — United States v. Kao (Dkt. 144, D. Haw. No. 1:21-cr-00061)

Record facts

U.S. District Court for the District of Hawaii · No. 1:21-cr-00061-LEK · Doc. 144 · 2025-02-07 · Docket on CourtListener

Full text

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WARNING: THIS DOCUMENT IS FILED UNDER SEAL 
PURSUANT TO CRIMINAL LOCAL RULE 32.2 
 
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 LEK 
DEFENDANT’S SENTENCING 
MEMORANDUM IN SUPPORT 
OF A REASONABLE 
SENTENCE; EXHIBITS “A” – 
“B”; CERTIFICATE OF 
SERVICE 
DEFENDANT’S SENTENCING MEMORANDUM  
IN SUPPORT OF A REASONABLE SENTENCE 
 
COMES NOW, Defendant MARTIN KAO (“Defendant or Mr. Kao”), by 
and through his undersigned counsel, hereby asks this Court to impose a 
reasonable sentence that is sufficient, but not greater than necessary, to satisfy the 
legal standards set forth in 18 U.S.C. Sec. 3353(a). 
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In addition, this memo specifically addresses the following issues: (1) That 
prison is harder for a first-time offender, (2) The impact of a Defendants age and 
risk of recidivism, (3) Post-offense rehabilitation and (4) Sentencing disparity. 
1. 
A Reasonable Sentence Should Compensate For The Fact That 
Prison Is harder For A First Offender.  
 
It has been held that a variance may be appropriate for a first-time offender 
because prison has greater significance for those imprisoned for the first time. 
See U.S. v. Baker, 445 F.3d 987 (7th Cir. 2006) (affirming non-guideline 
sentence of 78 months from 108 months for defendant convicted of distributing 
child porn, justified in part by judge’s finding that prison would mean more to 
this defendant than one who has been imprisoned before, which resonated with 
goal of “just punishment” in § 3553(a)(2)(A) and “adequate deterrence” in 
Section 3553(a)(2)(B); see also U.S. v. Jewell, 2009 WL 1010877 (E.D.Ark. 
April 15, 2009) (defendant sentenced to 30 months in prison for aiding and 
abetting tax evasion, because guideline range near the statutory maximum of 5 
years was inappropriate for first time offender); U.S. v. Cull, 446 F. Supp. 2d 
961 (E.D. Wis. 2006) (non-guideline sentence of 2 months in jail and 4 months 
home confinement, where advisory range was 10-14 months for a marijuana 
offense by defendant who had never been confined, was sufficient to impress on 
him the seriousness of his crime and deter him from re-offending); U.S. v. 
Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005) (generally, a lesser prison 
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term is sufficient to deter one who has not been subject to prior lengthy 
incarceration).  
Accordingly, this court should consider a variance for Mr. Kao based upon 
the fact that he is 51 years old and has never been incarcerated and that an 
extended period of imprisonment will have a disproportionate effect on him 
compared to other defendants’ that fall under the same guideline range. 
2. 
Defendants’ Age/ Recidivism 
 
A reasonable sentence should take into consideration that Mr. Kao is 51 
years old and poses little to no risk of recidivism. 
(Departure warranted because guidelines fail to consider the length of time 
defendant refrains from commission of first crime, here until age 49.) U.S. v. 
Ward, 84 F, Supp 23 (E.D. Va. 1993); U.S. v. Bariek, 2005 WL 2334682 (E.D.Va., 
Sept. 23 2005) (unpub.) (where defendant convicted of operating unlicensed 
money business (sending funds to Afghanistan), guideline range of 37-46 months 
greater than necessary and sentence of 18 months imposed in part because "this is 
the defendant's first criminal offense.  The defendant arrived in the United States in 
1989 and later sought and obtained his United States citizenship. Since his arrival, 
he has maintained stable employment, has supported his family, and has become a 
well-respected member of the Afghan community. Further, there is no indication 
that the defendant poses a risk of recidivism. For each of these reasons, the Court 
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finds no compelling rehabilitation need as would be served by a lengthy term of 
incarceration. "); U.S. v. Lucania, 379 F.Supp.2d 288, 297 (E.D.N.Y. 200S) ("Post-
Booker courts have noted that recidivism is markedly lower for older 
defendants."). U.S. v. CarmonaRodriguez, 200S WL 840464, *4 (S.D.N.Y. April 
11, 200S) (unpub.) ( where an older woman pled guilty to distribution of drugs 
sentence of 30 months (below guideline range) proper in part "in view of the low 
probability that Carmona Rodriguez will recidivate." Defendants "over the age of 
forty... exhibit markedly lower rates of recidivism in comparison to younger 
defendants See Measuring Recidivism: The Criminal History -Computation of The 
Federal Sentencing Guidelines, at 12, 28 (2004) www.ussc .gov publication / 
Recidivism Center ("Recidivism rates decline relatively consistently as age 
increases”). 
The defense submits that, under the unique circumstance of this case, that a 
lengthy term of imprisonment would be strictly punitive and that it should be 
shorter than say, for example, a drug Defendant or a sex offender who need to 
complete worthy rehabilitation programs within the confines of the prison.  
In contrast, Mr. Kao is 51 years old with no criminal history and was 
involved in a situation that will never occur again. He is well educated, has an 
exemplary work history, He has strong family support and extended caregiver 
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responsibilities, and he has engaged in extensive post offense rehabilitation over 
the past 4 years.   
Accordingly, the empirical data, combined with Mr. Kao’s individual 
situation, weighs heavily against a lengthy term of incarceration. 
3. 
Post Offense Rehabilitation  
 
A variance in this case is warranted in light of Mr. Kao’s extraordinary post 
offense rehabilitation.  
United States v. Griffiths, 954 F. Supp. 738 (D. Vt. 1997).  Post-offense 
rehabilitative efforts – significant work and educational achievements –after arrest 
for LSD offense warranted downward departure.  United States v. Whitaker, 152 
F.3d 1238 (10th Cir. 1998).  Extraordinary or exemplary post-offense drug 
rehabilitation may be a ground for downward departure. United States v. Brock, 
108 F.3d 31 (4th Cir. 1997).  Reversing pre-Koon circuit precedent, the Fourth 
Circuit held that post-offense rehabilitation may be a ground for a downward 
departure.  United States v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996).  Case 
remanded because court incorrectly believed that it could not depart on post-
offense extraordinary remorse.  United States v. Maier, 975 F.2d 944, 946-49 (2d 
Cir. 1992).  Affirmed downward departure based on defendant’s post-offense drug 
rehabilitation. 
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It is undisputed that, after being arrested, different offenders make different 
choices and have different experiences, and those differences can suggest 
appropriately different treatment by judges, correctional officials, probation and 
parole supervisors, and other decision makers in the criminal justice system.  
The relevance of post-offense conduct to punishment has been endorsed in 
practice in court opinions, statutes, and sentencing guidelines across the 
jurisdictions.  In Pepper v. United States, 562 U.S. 476 (2011), the Court made it 
clear that sentencing courts may consider a very wide range of information about 
the offender, more than just the particular acts by which the offense was 
committed, including the offender’s life, characteristics, and propensities. 
Additionally, the United States Federal Sentencing Guidelines expressly 
recognize the possibility of reduction in punishment due to positive post-offense 
conduct, like the acceptance of responsibility for the offense, the disclosure of an 
offense that would have otherwise remained undiscovered, cooperation with the 
government in the prosecution of others and post-offense rehabilitative efforts. 
 The United Nations and other international bodies also emphasize that the 
primary aim of imprisonment should be the reformation and social rehabilitation of 
offenders, to prepare them for reintegration into society upon release.  
Hawaii has adopted this ideology as well. In 2022, the Hawaii Department 
of Public Safety was reestablished as the Department of Corrections and 
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Rehabilitation under a bill signed into law by Gov. David Ige. The department’s 
vision now centers around transforming the state’s correctional system, which has 
been historically perceived as a punitive model, to a focus on rehabilitation and 
restoration, and reducing recidivism. 
In the present case, Mr. Kao’s post offense rehabilitation is truly 
exceptional.   The following is a list of some of his efforts and accomplishments: 
1. 
Church and Weekly Bible Study 
2. 
Applied - The American Red Cross - REJECTED  (Background 
search) 
3. 
Volunteer - Hawaii Meals on Wheels 
4. 
Volunteer - University Ave. Baptist Church 
5. 
Katsumidori Japanese Izakaya - Dishwasher 
6. 
The Cheesecake Factory - Line Cook, Dishwasher, Maintenance 
7. 
NAMI - National Association for Mental Illness  
8. 
Kapiolani Community College: Culinary Institute of the Pacific (Open 
- In Progress) 
9. 
Harvard University, Graduate Continuing Education - MBM, 
Masters of Business Management (Open - In Progress) 
10. 
Volunteer - Miranda Ministries, Cook  
11. 
Cooperation and assistance with the Department of Justice and FBI - 
Main Justice and Washington DC, ongoing investigations.   
12. 
Enrolled and participated in Hawaii Department of Human Services - 
First To Work Program 
13. 
Applied to 6 Civil Service Job Opportunities with the State of Hawaii  
 
a. 
INMATE GRIEVANCE SPECIALIST - DEPARTMENT OF 
CORRECTIONS AND REHABILITATION - DOWNTOWN, 
OAHU (Waiting for Response) 
b. 
AUDITOR V - DEPARTMENT OF TAXATION - OAHU 
(REJECTED) 
c. 
PARKS DISTRICT SUPERINTENDENT II - MANOA TO 
KAHALA, OAHU (Waiting for Response) 
d. 
BUSINESS MANAGER V - OAHU (Waiting for Response) 
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e. 
COOK III - SHIFT WORK - OAHU CORRECTIONAL 
FACILITIES (REJECTED) 
f. 
BUSINESS REGISTRATION ASSISTANT - OAHU (Waiting 
for Response) 
 
Mr. Kao’s extraordinary post offense actions clearly demonstrate a 
significant and genuine effort to address the root causes of his behavior and his 
offenses.  They also represent a commitment to personal growth and accountability 
which should not be ignored in determining a reasonable sentence in this case. 
Mr. Kao’s post offense journey from the kitchen to the campus also serves 
as a positive example to a broad range of Defendants that personal reflection and 
hard work are valued and can make a difference in their sentence and in their life.  
Accordingly, a lengthy term of imprisonment of 87 months would do 
nothing to assist with Mr. Kao’s rehabilitation and instead, it could have the 
unintended side-effect of discouraging others to better themselves. 
 
 
 
  
 
 
 
 
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4. 
Sentencing Disparity 
 
 
According to the IRS website: 
 
 
March 28, 2024 
 
Washington - Four years after the enactment of a key pandemic-era law, the 
Internal Revenue Service released updated numbers showing Criminal 
Investigation (CI) has investigated 1,644 tax and money laundering cases 
related to COVID fraud potentially totaling $8.9 billion, with well over half 
that amount coming from cases opened in the last year. 
 
These cases include a wide range of criminal activity, including 
fraudulently obtained loans, credits and payments meant for American 
workers, families and small businesses under the Coronavirus Aid, 
Relief and Economic Security (CARES) Act. 
 
As of Feb. 29, 795 people have been indicted for their alleged 
COVID-related crimes and 373 individuals have been sentenced to an 
average of 34 months in federal prison. During the last four years, CI 
has obtained a 98.5% conviction rate in prosecuted COVID fraud 
cases. 
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Upon review, many of the prosecuted cases involved Defendants who 
applied for loans to subsidize non-existent companies and then used the money to 
enrich themselves by purchasing extravagant luxury items.   
In contrast, Mr. Kao did not need the money to achieve or maintain a 
wealthy lifestyle.  Mr. Kao had a successful company, and the funding was for the 
primary purpose of protecting his business during the uncertainty of the COVID 
pandemic.  Ironically, unlike the majority of other cases, Mr. Kao’s abuse of the 
loan program actually resulted in the destruction of Mr. Kao’s finances and his 
career. 
Consequently, a sentence below the recommended sentence of 87 months is 
warranted when compared to the average sentence of 34 months in other cases. 
 
DATED:  Honolulu, Hawaii, February 7, 2025. 
/s/ Victor J. Bakke  
 
  
 
 
 
 
 
VICTOR J. BAKKE 
 
Attorney for Defendant 
 
 
 
 
 
MARTIN KAO 
 
 
 
 
 
 
 
 
 
 
 
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