Motion for Order Authorizing Application of Defendant's Bond Deposit — United States v. Martin Kao (Dkt. 132)

Summary

A motion filed August 5, 2024, as Document 132 in United States of America v. Martin Kao, Case 1:21-cr-00061-LEK, in the U.S. District Court for the District of Hawaii. The United States moves under 28 U.S.C. § 2044 for an order authorizing the application of the defendant's bond deposit to the special assessment and any restitution ordered. The motion states that the defendant posted a $2,000,000 secured bond by cash deposit on or about October 8, 2020. It states that the grand jury returned an indictment on May 6, 2021, charging three counts of wire fraud and five counts of money laundering, and that the defendant pled guilty to all counts without a plea agreement on September 7, 2022.

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



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, )           Crim. No. 21-00061 LEK
                          )
             Plaintiff,   )           UNITED STATES’ MOTION FOR
                          )           ORDER AUTHORIZING
    v.                    )           APPLICATION OF DEFENDANT’S
                          )           BOND DEPOSIT TO PAYMENT OF
MARTIN KAO,               )           SPECIAL ASSESSMENT AND
                          )           RESTITUTION
             Defendant.   )
                          )
                          )
                          )
                          )
                          )
                          )
                          )
                          )
 Case 1:21-cr-00061-LEK Document 132 Filed 08/05/24 Page 2 of 5 PageID.1136



            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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 Case 1:21-cr-00061-LEK Document 132 Filed 08/05/24 Page 3 of 5 PageID.1137



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



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



                          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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