United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S RENEWED MOTION TO
Derrick K. Watson United States District Judge.
John Zachary Katsu Toyofuku is charged with knowingly and
intentionally attempting to possess with the intent to
distribute fifty (50) kilograms or more of marijuana, a
Schedule I controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C).
September 21, 2015, this Court denied Toyofuku's Motion
to Suppress. In pertinent part, the Court found no Fourth
Amendment violation where private citizens seizing the
marijuana for which Toyofuku was indicted neither acted as an
instrument nor agent of federal law enforcement. A year
later, on September 20, 2016, this Court agreed to re-open
Toyofuku's Motion based on allegedly new evidence that
the same private citizens who-without a warrant-opened the
crate containing the marijuana destined for Toyofuku did so
at the behest of local law enforcement.
now heard and considered the additional testimony, evidence,
and argument proffered by the defense on October 26, 2016,
the Court DENIES Toyofuku's renewed Motion to Suppress.
The private citizens at issue here- “marshals of the
Polynesian Kingdom of Atooi”-did not act as the
instruments or agents of either federal or local law
enforcement. Accordingly, the Atooi marshals' search and
ensuing seizure of the marijuana did not violate the Fourth
Amendment, and Toyofuku's Motion is DENIED.
2015 Evidentiary Hearings and Order
Court heard Toyofuku's first Motion to Suppress on August
24, 2015, September 8, 2015, and September 11, 2015. Three
witnesses testified: Federal Bureau of Investigation
(“FBI”) Special Agent Timothy Judah Pent,
Honolulu Police Department (“HPD”) Officer Darren
Lee, and Atooi Marshal Samson Kama. Collectively, their
testimony focused on a series of events on June 7, 2013,
beginning with an unscheduled meeting between Special Agent
Pent, Kama, and a second Atooi Marshal Kimokeo Kahalewai
(also known as Timothy Troxell). According to Toyofuku, the
two Atooi Marshals acted as agents, and at the direction, of
Special Agent Pent when later searching the crate containing
the marijuana referenced in the Indictment without a warrant,
violating Toyofuku's Fourth Amendment rights, and
mandating the suppression of the evidence.
testimony from this series of hearings in 2015 revealed that,
during the morning of June 7, 2013, Kama and Kahalewai made
an unsolicited attempt to meet with the FBI Special
Agent-in-Charge (“SAC”) in order to introduce
themselves for the purpose of building a law enforcement
relationship with the FBI. Appearing at the FBI field
headquarters in Kapolei, Kama and Kahalewai met Special Agent
Pent, rather than the SAC, outside the building security
checkpoint for approximately ten minutes. During the meeting,
Kahalewai showed Special Agent Pent a badge, which displays
the words “Hawaii Federal Marshal, ” and contains
a circular seal, which displays the words, “The
Polynesian Kingdom of Atooi.” See 2015 WL
5601851, at *2.
Agent Pent confirmed that Kama and Kahalewai, whom he had
never previously met nor been aware of, wanted to build a
relationship with the FBI. Kama and Kahalewai described the
Kingdom of Atooi and their role within the Kingdom, but did
not mention work on any investigation generally, much less
work that they were doing on any drug investigation
specifically. Special Agent Pent concluded the brief
conversation by shaking the two men's hands, giving them
his business card, and telling them politely, as he would
have to any other citizen, that they could call him if they
had any information in which the FBI might be interested.
See 2015 WL 5601851, at *2.
testified that several hours after meeting with Special Agent
Pent on June 7, 2013, he and Kahalewai received a call from
an Atooi citizen, Clint Christiansen, a driver for Express
Movers. Christiansen reported that he was being followed. As
a result, Kama and Kahalewai arranged to meet Christiansen in
Kunia. Kama testified that when they arrived, their primary
concern was for the safety of both Christiansen and
themselves. Christiansen further reported that he suspected
the crate he was carrying in the bed of his delivery truck
contained drugs and that might be the reason he was being
testified that one of them then opened the crate in
Christiansen's truck and found it to contain marijuana.
Kama took a photo of the contents of the boxes within the
crate, and texted the photo to Special Agent Pent on his cell
phone. See 9/8/15 Tr. at 12-14 (Dkt. No. 110). Kama
testified that he then followed up the photo by calling
Special Agent Pent and other law enforcement agencies for
immediate assistance. Despite these efforts, according to
Kama, it took “give or take two hours” for law
enforcement to arrive. 9/8/15 Tr. at 14. When law enforcement
officials did arrive, Kama recalled speaking to HPD Sergeant
Apollo Chang. Kama testified that he spoke to Sergeant Chang
on the scene in Kunia and told him, “we just wanted to
give the info to the rightful authority, ” and that
“Our intent was safety for the citizen first.”
9/8/15 Tr. at 15. Kama made no mention at the 2015
evidentiary hearings of any telephone calls between himself
and Sergeant Chang earlier that day.
cross-examination, Kama hedged on how the crate came to be
opened. He testified that Christiansen first told him there
was marijuana in the crate upon arriving at the scene in
Kunia. Kama did not recall how Christiansen came to suspect
the contents of the crate contained drugs, nor did Kama
recall when the crate was first opened, or which one of the
three of them opened it. He acknowledged the crate could have
been opened before he and Kahalewai arrived. 9/8/15 Tr. at
15-17. The government then questioned Kama regarding his
attempts to reach law enforcement officials and any
instructions he may have received from them:
Q: Agent Pent didn't tell you to open the box, did he?
A: Agent who? Pent?
Q: Judah Pent.
A: Judah Pent, no.
Q: And Officer Apollo Chang was with the Honolulu Police
Q: He came later after you called Judah Pent?
A: I did the calling to HPD - Q: Right.
A: -- followed up by narco/vice, followed up by the DEA,
followed up with the FBI. And all we did was try to do the
right thing and turn it over to the proper authorities.
Q: Okay. Mr. Kama, the first person you called when you got
to Kunia to talk to Clint was FBI Agent Pent?
Q: And then you called HPD?
A: Not that I recall which way the order was but I know I
called all four departments.
Q: Okay. And no one of the four departments, DEA didn't
tell you to open the crate, did they?
A: The DEA, no. They didn't answer.
A: None of them answered.
Q: HPD never answered?
A: HPD never ...