Complaint (2024-08-05)

Summary

United States' Motion for Order Authorizing Application of Defendant's Bond Deposit to Payment of Special Assessment and Restitution, Document 132 filed August 5, 2024 in United States of America v. Martin Kao, Crim. No. 21-00061 LEK (Case 1:21-cr-00061-LEK), in the U.S. District Court for the District of Hawaii. The government moves under 28 U.S.C. § 2044 for an order applying Defendant Martin Kao's $2,000,000 cash bond, on deposit with the Clerk of the Court, to the special assessment and any restitution ordered. The motion states that the grand jury returned an indictment on May 6, 2021 charging three counts of wire fraud under 18 U.S.C. § 1343 and five counts of money laundering under 18 U.S.C § 1957, that Defendant pled guilty on September 7, 2022 without a plea agreement, and that sentencing was set for August 27, 2024. It is signed /s/ Craig S. Nolan.

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CLARE E. CONNORS #7936

United States Attorney

District of Hawaii

CRAIG S. NOLAN

SYDNEY SPECTOR #11232

Assistant U.S. Attorneys

Room 6100, PJKK Federal Building

300 Ala Moana Blvd.

Honolulu, Hawaii  96850

Telephone:  (808) 541-2850

Facsimile:  (808) 541-2958

Email: Craig.Nolan@usdoj.gov

 Sydney.Spector@usdoj.gov

Attorneys for Plaintiff
UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

Plaintiff,

v.

MARTIN KAO,

Defendant.
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Crim. No. 21-00061 LEK

UNITED STATES’ MOTION FOR
ORDER AUTHORIZING
APPLICATION OF DEFENDANT’S
BOND DEPOSIT TO PAYMENT OF
SPECIAL ASSESSMENT AND
RESTITUTION

Case 1:21-cr-00061-LEK   Document 132   Filed 08/05/24   Page 1 of 5  PageID.1135

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UNITED STATES’ MOTION FOR ORDER
AUTHORIZING APPLICATION OF DEFENDANT’S
BOND DEPOSIT TO PAYMENT OF ASSESSMENT AND RESTITUTION

The UNITED STATES OF AMERICA, by and through its attorneys, moves
pursuant to 28 U.S.C. § 2044 for an Order authorizing application of Defendant
MARTIN KAO’s bond deposit to payment of Defendant’s special assessment and
any restitution ordered by the Court.
BACKGROUND
On September 30, 2020, Defendant was arrested in this matter pursuant to
warrant and complaint.  ECF Nos. 1, 9.  On or about October 8, 2020, Defendant
posted a $2,000,000 secured bond, all by way of a cash deposit, which is presently
held by the Clerk of the Court.  ECF No. 14.  On May 6, 2021, the grand jury
returned an indictment charging Defendant with three counts of wire fraud, in
violation of 18 U.S.C. § 1343, and five counts of money laundering, in violation of
18 U.S.C § 1957.  ECF No. 34.  On September 7, 2022, Defendant pled guilty to
all counts without a plea agreement.  Defendant’s sentencing hearing is currently
set for August 27, 2024.
ARGUMENT

Defendant’s $2,000,000.00 cash bond should be applied to Defendant’s
criminal penalties pursuant to 28 U.S.C. § 2044, which provides in its pertinent
part:
Case 1:21-cr-00061-LEK   Document 132   Filed 08/05/24   Page 2 of 5  PageID.1136

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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.

28 U.S.C. § 2044 (emphasis added).
Although Federal Rule of Criminal Procedure 46(g) provides for the return
of bond monies when the conditions of release have been satisfied, “absent an
order from the district court releasing a bond, the bond remains available for
purposes of Section 2044.”  United States v. Sortini, 497 Fed. Appx. 738, 739 (9th
Cir. 2012) (affirming application of bond monies to restitution); see also United
States v. Tresch, 626 F. App'x 638 (7th Cir. 2015) (affirming order requiring
turnover of money posted as security on appearance bond toward payment of
restitution); cf. United States v. Phu Tan Luong, 291 Fed. Appx. 73, 75-76 (9th Cir.
2008) (section 2044 turnover not available where district court previously entered
order exonerating bond).
Here, the bond has yet not been exonerated.  Accordingly, § 2044 requires
that the $2,000,000 cash bond be applied to the satisfaction of Defendant’s
criminal penalties upon Defendant’s surrender for service of any term of
imprisonment imposed by the Court.
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CONCLUSION
Based on the foregoing, the government respectfully requests that the Court
enter an order authorizing the Clerk of the Court to apply the $2,000,000 cash bond
previously posted by Defendant and presently held by the Clerk to payment of
Defendant’s criminal penalties, including his Special Assessment and any order of
restitution.
DATED:    August 5, 2024, at Honolulu, Hawaii.

CLARE E. CONNORS

United States Attorney

District of Hawaii

By /s/ Craig S. Nolan
CRAIG S. NOLAN
SYDNEY SPECTOR
Assistant U.S. Attorneys

Attorneys for Plaintiff

UNITED STATES OF AMERICA
Case 1:21-cr-00061-LEK   Document 132   Filed 08/05/24   Page 4 of 5  PageID.1138

CERTIFICATE OF SERVICE
I hereby certify that, on the date noted below, a true and correct copy of the
foregoing was served on the following counsel of record using the Court’s
CM/ECF electronic filing system:
Victor J. Bakke, Esq.
Attorney for Defendant Marin Kao

DATED: August 5, 2024, at Honolulu, Hawaii.

/s/ Craig S. Nolan

Craig S. Nolan
U.S. Attorney’s Office

Case 1:21-cr-00061-LEK   Document 132   Filed 08/05/24   Page 5 of 5  PageID.1139

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