United States of America v. John Zachary Katsu Toyofuku

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN ZACHARY KATSU TOYOFUKU,
Defendant-Appellant.
No. 17-10263
D.C. No.
1:14-cr-00032-DKW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted October 11, 2018
Honolulu, Hawaii
Before: WARDLAW, BERZON, and BENNETT, Circuit Judges.
John Toyofuku appeals the district court’s denials of his motion to suppress
and renewed motion to suppress. We affirm.
The district court denied the motions to suppress because it found that
private citizen members of a Hawaiian sovereignty group were not acting as
instruments or agents of the government for purposes of the Fourth Amendment
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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when one or more of the members opened a shipping crate and found marijuana,
ultimately leading to the arrest and conviction of Toyofuku.
As to the first motion, the district court did not err in holding that FBI
Special Agent Judah Pent’s meeting with Samson Kama and Kimokeo Kahalewai
the morning of the search was insufficient under our case law to establish that the
government knew of and acquiesced in the subsequent search. See United States v.
Walther, 652 F.2d 788, 792–93 (9th Cir. 1981).
As to the second motion, the district court did not err in finding that
someone searched the crate before Kama spoke to Sergeant Apollo Chang. The
district court’s factual findings must be affirmed unless clearly erroneous. See
United States v. Peterson, 902 F.3d 1016, 1019 (9th Cir. 2018). This is a highly
deferential standard, particularly with respect to credibility determinations. See
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). It was not clearly
erroneous for the district court to discredit Kama’s testimony and credit the
testimony of law enforcement officers regarding whether Kama indicated that he
knew the crate contained marijuana when he first spoke to Sergeant Chang and
whether Sergeant Chang directed Kama to open the crate, which was the critical
question. Precisely when the crate was opened does not matter. Also, the record
supports the district court’s finding that Kama called law enforcement several
times before speaking with Sergeant Chang, which is consistent with the

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conclusion that, by then, he already knew that the crate contained marijuana.
Because the district court did not clearly err in finding that someone
searched the crate before Kama spoke to Sergeant Chang, it follows that the district
court did not err in holding that Kama’s subsequent conversations with law
enforcement officers did not retroactively convert the search into a government
search. See, e.g., United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998) (per
curiam).
AFFIRMED.

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