Court filing
ORDER DENYING THIRD-PARTY IN INTEREST TIFFANY JENNIFER LAM'S… — PPP Attempt Conspiracy Legal Filings (Dkt. 170)
No. 1:21-cr-00061-LEK · Doc. 170 · Docket on CourtListener
Summary
An order in United States v. Martin Kao, No. 1:21-cr-00061-LEK, in the U.S. District Court for the District of Hawaii, filed April 4, 2025 (Doc. 170), denying third-party in interest Tiffany Jennifer Lam's objection to a magistrate judge's order applying Kao's $2,000,000 bond deposit to his special assessment and restitution. The order recounts that Kao was sentenced on February 13, 2025 to eighty-seven months of incarceration and restitution of $12,841,490. Lam argued that she had a joint marital interest in the Merrill Lynch account from which the bail funds came. Reviewing de novo under Title 28 United States Code Section 2044, the court finds that Kao was the sole owner of the account and that marital property principles do not apply. It sustains the order that the $2,000,000 be paid over to the government.
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 170 Filed 04/04/25 Page 1 of 10 PageID.1492
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
UNITED STATES OF AMERICA, CR. NO. 21-00061 LEK
Plaintiff,
vs.
MARTIN KAO,
Defendant.
ORDER DENYING THIRD-PARTY IN INTEREST
TIFFANY JENNIFER LAM’S OBJECTION TO THE
ORDER GRANTING UNITED STATES’ MOTION FOR
ORDER AUTHORIZING APPLICATION OF DEFENDANT’S BOND
DEPOSIT TO PAYMENT OF SPECIAL ASSESSMENT AND
RESTITUTION [ECF NO. 156], [FILED 3/18/25 (DKT. NO. 164)]
Third-Party in Interest Tiffany Jennifer Lam (“Lam”)
appeals the magistrate judge’s order finding that, under Title
28 United States Code Section 2044, Lam does not have any
ownership interest in the funds posted as bail for Lam’s
husband, Defendant Martin Kao (“Kao”), in his criminal matter,
United States v. Kao, 21-00061 LEK. See Third-Party in Interest
Tiffany Jennifer Lam’s Objection to the Order Granting the
United States’ Motion for Order Authorizing Application of
Defendant’s Bond Deposit to Payment of Special Assessment and
Restitution, filed 3/18/25 (dkt. no. 164) (“Appeal”).
The Court finds the matter suitable for decision
without a hearing pursuant to Rule LR12.2(a)(1) of the Criminal
Local Rules. After careful review of the submissions and
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 2 of 10 PageID.1493
applicable law, the Appeal is hereby DENIED and the magistrate
judge’s ruling is upheld as follows.
BACKGROUND
This matter arises out of a criminal prosecution
against Kao. A criminal complaint was filed against Kao on
September 29, 2020. [Criminal Complaint, filed 9/20/20 (dkt. no.
1).] Kao was arrested and was subsequently released on bail
conditions, which included the posting of $2,000,000 bond
secured by cash. [Minutes: Court Action: EP: Telephonic
Detention Hearing held, filed 10/2/20 (dkt. no. 8).] Kao was
indicted on May 6, 2021 and charged with three counts of wire
fraud, in violation of Title 18 United States Code Section 1343
(“Counts 1-3”), and five counts of money laundering, in
violation of Title 18 United States Code Section 1957 (“Counts
4-8”). [Indictment, filed 5/6/21 (dkt. no. 31).] Forfeiture of
any real or personal property that constituted or was derived
from proceeds traceable to the alleged offenses of wire fraud
and money laundering was also sought. [Id. at pgs. 17-20.]
Kao entered guilty pleas to Counts 1 through 8, which
was accepted on September 22, 2022. [Acceptance of Plea of
Guilty, Adjudication of Guilt and Notice of Sentencing, filed
9/22/22 (dkt. no. 79).] On February 13, 2025, Kao was sentenced
in this matter as well as to Count 1 of the Indictment filed in
United States v. Kao, Cr. No. 23-00003 LEK, and received a
2
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 3 of 10 PageID.1494
sentence of eighty-seven months of incarceration, five years of
supervised release as to Counts 1 through 3 in Cr. No. 21-00061
and Count 1 in Cr. No. 23-00003, and three years of supervised
release as to Counts 4 through 8 in Cr. No. 21-00061, to run
concurrently; restitution in the amount of $12,841,490; 12,000
hours of community service; and special assessment fees of
$900.00. [Amended Judgment in a Criminal Case (“Amended
Judgment”), filed 2/24/25 (dkt. no. 153), at 3-4, 6-7; Cr. 23-
00003 LEK, Amended Judgment in a Criminal Case, filed 3/28/25
(dkt. no. 52).] He was ordered to surrender on March 25, 2025
for his term of imprisonment. [Id. at pg. 3.] Pursuant to the
order of forfeiture filed on August 31, 2023, Plaintiff United
States of America (“the Government”) was granted an entry of a
forfeiture money judgment in the amount of $12,841,490.00, which
included $2,000,000 seized from Kao’s personal investment
account with Merrill Lynch. [Order of Forfeiture (Money Judgment
and Preliminary Order of Forfeiture (Specific Property), filed
8/31/23 (dkt. no. 116), at 7.]
On March 4, 2025, the magistrate judge granted the
Government’s motion seeking application of Kao’s $2,000,000 bond
deposit to his special assessment fee and restitution amount.
[Order Granting the United States’ Motion for Order Authorizing
Application of Defendant’s Bond Deposit to Payment of Special
3
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 4 of 10 PageID.1495
Assessment and Restitution (“3/4 Order”), filed 3/4/25 (dkt. no.
156).]1
Lam filed her appeal from the magistrate judge’s 3/4
Order on March 18, 2025.
STANDARDS
A district judge may designate a magistrate judge to
determine any pretrial matter pending before the court and may
reconsider any pretrial matter where it is shown that the
magistrate judge’s order is “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P.
72(b)(1) (empowering magistrate judges to enter findings and
recommendations that are dispositive of a claim). A magistrate
judge’s non-dispositive order is deferred to unless “clearly
erroneous or contrary to law.” Grimes v. City & Cnty. of San
Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing Fed. R.
Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A)). The “clearly
erroneous” standard applies to the factual findings by the
magistrate judge and the “contrary to law” standard applies to
the legal conclusions by that judge. See Williams v. United
States, Civ. No. 08-00437 ACK-BMK, 2012 WL 406904, at *3 (D.
Hawai`i Feb. 8, 2012). A finding of fact may be set aside as
clearly erroneous only if the court has “a definite and firm
1The Court construes the 3/4 Order as a report and
recommendation for purposes of review in this appeal.
4
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 5 of 10 PageID.1496
conviction that a mistake has been committed.” Burdick v.
C.I.R., 979 F.2d 1369, 1370 (9th Cir. 1992). “A decision is
contrary to law if it applies an incorrect legal standard or
fails to consider an element of the applicable standard.”
Williams, 2012 WL 406904, at *3.
For a magistrate judge’s findings and recommendation,
“[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3); see also United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes
it clear that the district judge must review the magistrate
judge’s findings and recommendations de novo if objection is
made, but not otherwise.”) (emphasis in original). Because the
magistrate judge’s order in this matter could be construed as a
dispositive order, the Court elects to treat the order as a
report and recommendation and analyzes the objections to it
under the de novo standard.
DISCUSSION
Lam submits that she posted the $2,000,000 for Kao’s
bail by personally depositing funds that she had withdrawn from
an account held with the financial institution, Merrill Lynch,
specifically Account No. **-*2641 (“Merrill Lynch Account”).
[Appeal at 3-4.] She contends that she has “a joint marital
interest in the Merrill Lynch Account, which included the
5
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 6 of 10 PageID.1497
$2,000,000.00” posted for Kao’s bond securing his pretrial
release. [Id. at 5.] Lam states that she and Kao, when they
married in 2007, “agreed that all their financial assets,
including [their home] and all their joint and individual bank
and financial accounts . . ., were joint marital assets to be
considered part of their marital estate[.]” [Id. at 2.] Other
than her written declaration attesting to the marital agreement,
there is no documentation (such as a written marital agreement)
provided by Lam. See Third Party in Interest Tiffany Jennifer
Lam’s Objection to the United States’ Motion for Order
Authorizing Application of Defendant’s Bond Deposit to Payment
of Special Assessment and Restitution, filed 2/13/25 (dkt. no.
149), Declaration of Tiffany Jennifer Lam.
The Government, on the other hand, disputes that Lam
has an ownership interest in the Merrill Lynch account. See
Response to Tiffany Jennifer Lam’s Objection to the United
States’ Motion for Order Authorizing Application of Defendant’s
Bond Deposit to Payment of Special Assessment and Restitution
(ECF No. 149) (“Response”), filed 2/27/25 (dkt. no. 154).] The
Government points to the documentation produced regarding the
Merrill Lynch Account as stating that this account was held
solely by Kao and was not identified as a joint account.
[Response at 3, 5 (citing Exh. A, Letter from Bank of America,
N.A., dated 8/28/20 (“Exh. A”)).] Indeed, the signature card for
6
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 7 of 10 PageID.1498
the Merrill Lynch Account identifies the account holder or
trustee as “Martin Y. Kao”; [Response, Exh. A at BOA-317-008-
DOJ-0000001;] the Merrill Lynch Client Relationship Agreement
Form for Individual, Joint or Retirement Accounts identifies the
client name as “Martin Y. Kao; [id., at BOA-317-008-DOJ-
0000004;] and the Merrill Lynch brokerage account report
reflecting a net value of $2,712,085 as of an unknown date lists
the account as being a single ownership; [id., at MLPFS-00202-
004-DOJ-0000135.]
Payment of a fine with money that has been posted by
or on behalf of a defendant for an appearance bond is governed
by 28 United States Code Section 2044, which states:
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 be
applied to the payment of any assessment, fine,
restitution, or penalty imposed upon the
defendant. The court shall not release any money
deposited for bond purposes after a plea or a
verdict of the defendant’s guilt has been entered
and before sentencing except upon a showing that
an assessment, fine, restitution or penalty
cannot be imposed for the offense the defendant
committed or that the defendant would suffer an
undue hardship. This section shall not apply to
any third party surety.
Here, the Government made its motion pursuant to
Section 2044 for the $2,000,000 posted for Kao’s appearance
7
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 8 of 10 PageID.1499
bond. If the money posted belonged to Kao, then it follows that
it can be held and paid over to be applied to the fine and
restitution that Kao was ordered to pay as part of his criminal
sentence, pursuant to Section 20244. Was Kao the owner of the
money used to post his bond? The evidence demonstrates that he
was.
The funds used to post the appearance bond were
derived from the Merrill Lynch Account, and the documentation
presented by the Government establishes Kao’s control over the
Merrill Lynch Account in that he is listed as its sole owner.
Further, Kao attested that he was the owner of the funds used
for the bond, which were to be returned to him upon exoneration
of the bond. [Affidavit of Cash Bail, filed 10/08/20 (dkt. no.
14) (filed under seal).] There is no evidence that the funds
were held jointly or by Lam individually.
As to Lam’s arguments regarding the spousal agreement
to share their expenses, income and property, the Court does not
doubt her veracity. However, marital property ownership
principles are inapplicable to the situation at hand because the
issue here is not about property ownership and division when a
divorce is granted. See, e.g., Haw. Rev. Stat. § 580-47(a)(3)
(stating that upon granting a divorce, the court may order the
division of “the estate of the parties, real, personal, or
mixed, whether community, joint, or separate; . . . .”). Rather,
8
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 9 of 10 PageID.1500
the issue is whether there is evidence establishing her
ownership, shared or otherwise, of the Merrill Lynch Account.
Her arguments about marital property division are therefore
unpersuasive. Likewise unpersuasive is her assertion that she
has established ownership through her actions by being
responsible for withdrawing the money, obtaining a cashier’s
check, and depositing this check to post the appearance bond.
These actions were certainly supportive of her husband, for
which she is to be commended, but are not evidence of ownership
of the Merrill Lynch Account.
The Court, after its de novo review, FINDS that Kao
was the sole owner of the Merrill Lynch Account. It CONCLUDES
that the Government’s motion was correctly granted and that the
magistrate judge’s order that the $2,000,000 belonging to Kao
and deposited by him for the purposes of a criminal appearance
bail bond is to be held and paid over to the Government to be
applied to the payment of any assessment, fine, restitution, or
penalty imposed upon Kao is SUSTAINED.
CONCLUSION
Third-Party in Interest Tiffany Jennifer Lam’s
Objection to the Order Granting United States’ Motion for Order
9
Case 1:21-cr-00061-LEK Document 170 Filed 04/04/25 Page 10 of 10 PageID.1501
Authorizing Application of Defendant’s Bond Deposit to Payment
of Special Assessment and Restitution, filed 3/18/25 (dkt. no.
164) is hereby DENIED.
DATED AT HONOLULU, HAWAII, April 4, 2025.
UNITED STATES OF AMERICA VS. MARTIN KAO; CR 21-00061 LEK; ORDER
DENYING THIRD-PARTY IN INTEREST TIFFANY JENNIFER LAM’S OBJECTION
TO THE ORDER GRANTING UNITED STATES’ MOTION FOR ORDER
AUTHORIZING APPLICATION OF DEFENDANT’S BOND DEPOSIT TO PAYMENT
OF SPECIAL ASSESSMENT AND RESTITUTION [ECF NO. 156], [FILED
3/18/25 (DKT. NO. 164)]
10
File and source
- File
- gov.uscourts.hid.154417.170.0.pdf
- Size
- 223,826 bytes
- SHA-256
- 66908fd1c447151edc8fb8027316f4e11baa4f9867ada58e2bf8f063982561c4
- Original
- PACER (login required)