Court filing
SENTENCING MEMORANDUM by Martin Kao — PPP Attempt Conspiracy Legal Filings (Dkt. 144)
No. 1:21-cr-00061-LEK · Doc. 144 · Docket on CourtListener
Summary
Defendant Martin Kao's sentencing memorandum in support of a reasonable sentence in United States v. Martin Kao, No. 1:21-cr-00061-LEK, in the U.S. District Court for the District of Hawaii, filed February 7, 2025 (Doc. 144). It asks for a sentence sufficient but not greater than necessary and addresses four issues: prison being harder for a first-time offender, age and risk of recidivism, post-offense rehabilitation and sentencing disparity. The memorandum states that Kao is 51 years old with no criminal history and lists his volunteer work, jobs and education since the offense. Citing IRS figures on COVID fraud cases with an average sentence of 34 months, it argues for a sentence below the recommended 87 months. It is signed by counsel Victor J. Bakke.
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Case 1:21-cr-00061-LEK Document 144 Filed 02/07/25 Page 1 of 10 PageID.1150
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, ) CR. NO. 21-00061 LEK
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Plaintiff, DEFENDANT’S SENTENCING
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MEMORANDUM IN SUPPORT
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vs. OF A REASONABLE
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SENTENCE; EXHIBITS “A” –
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MARTIN KAO, “B”; CERTIFICATE OF
)
SERVICE
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Defendant. )
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)
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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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