Court filing
MEMORANDUM in Opposition by Martin Kao re 132 MOTION United States'… — PPP Attempt Conspiracy Legal Filings (Dkt. 136)
No. 1:21-cr-00061-LEK · Doc. 136 · Docket on CourtListener
Summary
Defendant Martin Kao's memorandum in opposition to the United States' motion for an order authorizing application of his bond deposit to payment of special assessment and restitution (ECF No. 132), in United States of America v. Martin Kao, Cr. No. 21-00061 JAO, in the U.S. District Court for the District of Hawaii, filed August 15, 2024 as Document 136. The memorandum argues that the motion under 28 U.S.C. § 2044 is premature because the defendant has not been sentenced and no assessment, fine, restitution or penalty has been imposed. It also argues that the government seeks the full $2 million without any accounting of his actual obligations and does not identify the source of the money or address possible third-party claims. It cites United States v. Sortini (9th Cir. 2012) and is signed by defense counsel Victor J. Bakke.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 1:21-cr-00061-LEK Document 136 Filed 08/15/24 Page 1 of 4 PageID.1140
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, ) CR. NO. 21-00061 JAO
)
Plaintiff, MEMORANDUM IN
)
OPPOSITION TO UNITED
)
vs. STATES’ MOTION FOR ORDER
)
AUTHORIZING APPLICATION
)
MARTIN KAO, OF DEFENDANT’S BOND
)
DEPOSIT TO PAYMENT OF
)
Defendant. 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
1
Case 1:21-cr-00061-LEK Document 136 Filed 08/15/24 Page 2 of 4 PageID.1141
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
2
Case 1:21-cr-00061-LEK Document 136 Filed 08/15/24 Page 3 of 4 PageID.1142
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.
3
Case 1:21-cr-00061-LEK Document 136 Filed 08/15/24 Page 4 of 4 PageID.1143
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
4
File and source
- File
- gov.uscourts.hid.154417.136.0.pdf
- Size
- 135,621 bytes
- SHA-256
- 3aa45149e446dcd5b99325a76fec5a286467ed4ac9a8915d57f5736af4aae3cb
- Original
- PACER (login required)