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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
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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:
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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
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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
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