Court filing
RESPONSE by USA as to Martin Kao re 93 OBJECTIONS to and APPEAL from… — PPP Attempt Conspiracy Legal Filings (Dkt. 96)
No. 1:21-cr-00061-LEK · Doc. 96 · Docket on CourtListener
Summary
The United States' response to defendant Martin Kao's appeal (ECF No. 93) of the Magistrate Judge's order (ECF No. 92) on PacMar Technologies LLC's Motion for Return of Property (ECF No. 82), in United States of America v. Martin Kao, Cr. No. 21-00061 LEK, in the U.S. District Court for the District of Hawaii, filed March 23, 2023 as Document 96. The government takes no position on the merits and states that it seized the cell phone at issue under warrant on or about September 30, 2020. It says the phone holds evidence for this case and for a separate bank fraud prosecution set for trial on November 6, 2023, and that Kao is set for sentencing on September 7, 2023. The government offers to produce the extracted raw data or a Cellebrite report, and asks that any segregation of business from personal data be done by a court-appointed third party at PacMar's or Kao's cost.
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Full text
Case 1:21-cr-00061-LEK Document 96 Filed 03/23/23 Page 1 of 5 PageID.801
CLARE E. CONNORS #7936
United States Attorney
District of Hawaii
CRAIG S. NOLAN
Room 6-100, PJKK Federal Building
300 Ala Moana Boulevard
Honolulu, Hawaii 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-2958
E-Mail: Craig.Nolan@usdoj.gov
Attorneys for the 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, ) THE UNITED STATES OF
) AMERICA’S RESPONSE TO
) DEFENDANT MARTIN KAO’S
vs. ) APPEAL (ECF NO. 93);
) CERTIFICATE OF SERVICE
MARTIN KAO, )
)
Defendant. )
)
THE UNITED STATES OF AMERICA’S RESPONSE TO
DEFENDANT MARTIN KAO’S APPEAL (ECF NO. 93)
Case 1:21-cr-00061-LEK Document 96 Filed 03/23/23 Page 2 of 5 PageID.802
The United States of America hereby responds to Defendant Martin Kao’s
Appeal (ECF No. 93) of the Magistrate Judge’s Order (ECF No. 92) on PacMar
Technologies LLC’s Motion for Return of Property (ECF No. 82). The
government takes no position on the merits of PacMar’s motion or Defendant
Kao’s appeal. To assist the Court, the government states the following:
1. Pursuant to warrant, the government seized the cell phone at issue on or
about September 30, 2020, from Defendant Kao at the offices of the Navatek
companies that are now PacMar in connection with the arrest of Defendant
Kao.
2. The cell phone constitutes an instrumentality and evidence, and contains
evidence, relevant to this wire fraud and money laundering prosecution, and
to the bank fraud prosecution in CR 23-00003 LEK.
3. Defendant Kao pled guilty to all charges in this matter without a plea
agreement, and is scheduled for sentencing on September 7, 2023.
4. The bank fraud matter is scheduled for trial on November 6, 2023.
5. After seizing the cell phone, the government used forensic tools to extract
data from the cell phone.
6. The extracted data set contains both business data and personal data.
2
Case 1:21-cr-00061-LEK Document 96 Filed 03/23/23 Page 3 of 5 PageID.803
7. Subject to the Court’s direction, the government can produce to PacMar,
Defendant Kao, and/or any special master that the Court may appoint (a) the
raw data extracted from the cell phone and/or (b) a Cellebrite “report”
containing a Cellebrite “reader” and extracted data recognized by the
Cellebrite forensic tool. A party can use the reader to view, search, and
organize the data. (The Cellebrite tool does not recognize all raw data
extracted from cell phones.)
8. PacMar agrees that the production of the extracted raw data and the
Cellebrite report would satisfy its request for return of the cell phone, and
the Magistrate Judge ordered the production of data rather than the return of
the cell phone, itself, given PacMar’s agreement and the status of the two
prosecutions.
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Case 1:21-cr-00061-LEK Document 96 Filed 03/23/23 Page 4 of 5 PageID.804
9. To the extent that the Court orders the segregation of business data from
personal data before data is produced to PacMar, the government requests
that a third-party, such as a special master, be appointed by the Court
because such task would be unduly burdensome if placed upon the
government. Furthermore, PacMar and/or Defendant Kao, and not the
government, should bear the costs incurred for such a process because the
government’s obligation is merely to return property to its owner at the
conclusion of proceedings and the instant dispute between PacMar and
Defendant Kao is a part of a long-running business and legal dispute
between the two.
DATED: March 23, 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
4
Case 1:21-cr-00061-LEK Document 96 Filed 03/23/23 Page 5 of 5 PageID.805
CERTIFICATE OF SERVICE
I hereby certify that, on the dates and by the methods of service noted below,
a true and correct copy of the foregoing was served on the following at their last
known address:
Served via Electronically through CM/ECF to Counsel, including:
Keith M. Kiuchi kkiuchi106@cs.com
Counsel for MARTIN KAO
DATED: March 23, 2023, at Honolulu, Hawaii.
/s/ Desirai Tolbert
United States Attorney’s Office
District of Hawaii
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