RESPONSE to Motion by USA as to Martin Kao re 82 MOTION for Return of… — PPP Attempt Conspiracy Legal Filings (Dkt. 84)

Summary

The government's response to PacMar's Motion for Return of Property Pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure (ECF No. 82) in United States v. Martin Kao, No. 1:21-cr-00061-LEK, in the U.S. District Court for the District of Hawaii, filed January 26, 2023 as Doc. 84. The United States states that it does not oppose an order returning a copy of the data it extracted from the cellphone seized from Mr. Kao, and that Mr. Kao objected to that production. It notes that Mr. Kao has entered guilty pleas to all charges in this wire fraud matter, has not been sentenced, and was recently indicted for bank fraud in CR 23-00003 LEK, and that the phone contains evidence in both prosecutions. It asks the Court to set a deadline for Mr. Kao to respond and to limit any order to a copy of the data. The four-page response is signed by Craig S. Nolan.

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Case 1:21-cr-00061-LEK     Document 84    Filed 01/26/23   Page 1 of 4 PageID.496



CLARE E. CONNORS #7936
United States Attorney
District of Hawaii

CRAIG S. NOLAN
Assistant U.S. Attorney
Room 6100, PJKK Federal Building
300 Ala Moana Blvd.
Honolulu, Hawaii 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-2958
E-mail: Craig.Nolan@usdoj.gov

Attorneys for Plaintiff
UNITED STATES OF AMERICA

                  IN THE UNITED STATES DISTRICT COURT

                       FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,                        ) CR. NO. 21-00061 LEK
                                                 )
                   Plaintiff,                    ) GOVERNMENT’S
                                                 ) RESPONSE TO MOTION
            vs.                                  ) FOR RETURN OF PROPERY
                                                 ) PURSUANT TO RULE
MARTIN KAO,                                      ) 41(G); CERTIFICATE OF
                                                 ) SERVICE
                   Defendant.                    )
                                                 )

             GOVERNMENT’S RESPONSE TO MOTION FOR
            RETURN OF PROPERY PURSUANT TO RULE 41(G)

      The United States of America hereby responds to PacMar’s Motion for

Return of Property Pursuant to Rule 41(g) of the Federal Rules of Criminal

Procedure (ECF No. 82). PacMar’s Motion accurately describes and attaches the
Case 1:21-cr-00061-LEK      Document 84     Filed 01/26/23   Page 2 of 4 PageID.497



relevant written communications of PacMar, Victor J. Bakke, Esq., counsel for Mr.

Kao, and the government related to PacMar’s request. As explained by PacMar,

the government does not oppose an order to return a copy of the data extracted by

the government from the cellphone seized from and used by Martin Kao, which

PacMar states in its Motion is sufficient at this point in time. Had Mr. Kao

consented to such production, the government would have made the data available

to PacMar without the need for a motion and order. Because Mr. Kao objected to

such production, he should have an opportunity to respond to PacMar’s Motion.

      Finally, the government notes that although Mr. Kao has entered guilty pleas

to all charges in the instant wire fraud matter, he has not yet been sentenced, and

he was recently indicted in this District for bank fraud in CR 23-00003 LEK. The

cellphone at issue constitutes and contains evidence in both prosecutions.

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Case 1:21-cr-00061-LEK     Document 84     Filed 01/26/23   Page 3 of 4 PageID.498



      Wherefore, the government respectfully requests (1) that the Court set a

deadline for Mr. Kao to respond to PacMar’s Motion, and (2) if such Motion is

granted after Mr. Kao’s opportunity to respond, that the Court limit the scope of

the order to a production of a copy of the data extracted by the government from

the cellphone.

      DATED: January 26, 2023, at Honolulu, Hawaii.

                                             CLARE E. CONNORS
                                             United States Attorney
                                             District of Hawaii


                                             By: /s/ Craig S. Nolan
                                                 Craig S. Nolan
                                                 Assistant U.S. Attorney




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Case 1:21-cr-00061-LEK     Document 84     Filed 01/26/23   Page 4 of 4 PageID.499




                         CERTIFICATE OF SERVICE

      I hereby certify that, on the date and by the method of service noted below,

the true and correct copy of the foregoing was served on the following at their last

known address:

Served Electronically by CM/ECF:

Victor J. Bakke, Esq.

Attorney for Defendant
MARTIN KAO

Served Electronically by CM/ECF:

David M. Louie
Jesse W. Schiel

Attorneys for Movant
PACMAR TECHNOLOGIES LLC
f/k/a MARTIN DEFENSE GROUP,
LLC f/k/a NAVATEK LLC

      DATED: January 26, 2023, at Honolulu, Hawaii.

                                                   /s/ Dalia Malig
                                                   U.S. Attorney’s Office
                                                   District of Hawaii


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