United States District Court, D. Hawaii
ORDER REGARDING DISPUTED CLAIMS TO SEIZED
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
claimants to seized property are in agreement as to how the
property should be disbursed, they should promptly so inform
however, there is no such agreement, then each claimant is
directed to provide a written statement to this court under
penalty of perjury as to which specific items are claimed.
Each claimant may request of the Probation Office a copy of
photographs taken of the items and may attach to the
claimant's written statement photographs on which the
claimant has circled or otherwise marked the claimed items.
If all seized items are claimed by an individual, then a
simple written statement to that effect will suffice to
identify the claimed items. The foregoing are only
suggestions as to how to identify claimed items, and a
claimant may opt for a different method. No matter which
method is chosen, the statement must be under penalty of
perjury and must additionally include a brief description of
any evidence the claimant is able and willing to provide to
support his or her claim. The description need not include
actual supporting documents; the description may instead
state the nature of such evidence (e.g., receipts, business
records, oral testimony, etc.). Statements must be filed with
the court no later than October 3, 2017. The United States is
ordered to inform all claimants known to the United States
about this deadline, which may be extended upon a showing of
there is a dispute over any seized item, the court asks the
parties to weigh in on the appropriate procedure this court
should follow. One possibility is that the court order the
United States to file an interpleader action. This would
allow the resolution of disputed claims to be the subject of
normal civil discovery, motions, and, if required, a trial.
It is not clear, however, that any claimant would be entitled
to court-appointed counsel.
possibility is for this court to retain this matter as part
of the criminal case, in much the same way as disputed claims
are resolved when an indictment includes a forfeiture count,
and a nonparty asserts an interest in the property that is
the subject of the forfeiture count.
route is taken, the court is presently contemplating
appointing an expert witness under Rule 706 of the Federal
Rules of Evidence to assist the court in evaluating the
competing claims. The expert could, for example, opine on the
rarity or features of a particular item that might make it
more likely than not that a particular individual's claim
was valid or invalid.
court proposes the following: (1) a split of the cost of such
an expert between the United States and Mr. Shimabukuro
(whose costs might be paid from Federal Public Defender funds
if this remains a criminal case), with a limited contribution
from the court; (2) the submission by the United States
and Mr. Shimabukuro of a maximum of 3 names each as
recommended expert witnesses for the court to consider
appointing, with each name to be of an individual (not
necessarily living in Hawaii) with no financial or other
personal relationship to the submitting party and with each
name to be accompanied by a resume indicating the expertise
of the suggested individual (e.g., expert in coins only,
expert in stamps only, expert in jewelry, expert in both
stamps and coins, etc.) and the individual's agreement to
serve if selected by this court; (3) the issuance of a
detailed order setting forth the terms and conditions of any
appointment, with the order issuing only after counsel for
the United States, Mr. Shimabukuro, and affected claimants
had a chance to comment on a draft of the order; and (4) an
opportunity for the United States, Mr. Shimabukuro, and any
affected claimant to review and comment on any portion of a
report, statement, or opinion provided by the expert to the
court that may affect that party or claimant.
there are disputes among claimants, then, no later than
October 9, 2017, the United States and Mr. Shimabukuro must
provide written comments to this court concerning the
appropriate procedure to be followed. This may include
comments on the concept of court-appointed expert witnesses
and how they would be compensated.
 The court is assuming that the United
States would benefit from having an expert weigh in, to the
extent the United States sees itself as supporting the rights
of an alleged victim of a burglary. The court is also
assuming that, to the extent Mr. Shimabukuro plans to dispute
such a victim's claim, Mr. Shimabukuro would appreciate
having an expert weigh in. The court may set a maximum on the
expert's hourly rate and total fees.
 Rule 706 provides for compensation in
a criminal case “from any funds that are provided by
law.” The parties may want to address what those words
mean. United States of America v. Wallace Shimabukuro, Jr.
CR. NO. 03 00560 SOM, ...