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United States v. Toyofuku

United States District Court, D. Hawaii

December 5, 2016



          Derrick K. Watson United States District Judge.

         Defendant 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).

         On 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.

         Having 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”[1]-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.


         I. 2015 Evidentiary Hearings and Order

         The 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.

         The 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.

         Special 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.

         Kama 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 followed.

         Kama 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.

         On 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 Department.
A: Yes.
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?
A: Yes.
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.
Q: Okay.
A: None of them answered.
Q: HPD never answered?
A: HPD never ...

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