USA v. Borges, et al.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
v.
ROBIN TAKIGUCHI, 	(04)
Defendant.
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CR. NO. 23-00050 HG-04
ORDER GRANTING THE GOVERNMENT’S APPEAL OF THE
MAGISTRATE JUDGE’S ORDER AND GRANTING GOVERNMENT’S MOTION TO
DETAIN DEFENDANT PENDING TRIAL
This matter came before the Court on the Government’s
appeal of the Magistrate Judge’s denial of its Motion to Detain
Defendant Takiguchi Without Bail. 	For the reasons stated below,
the appeal is GRANTED, and Defendant Robin Takiguchi is DETAINED
pending trial.
On September 18, 2023, the Court heard the Government’s
appeal of the Magistrate Judge’s denial of its Motion to Detain
Defendant Without Bail (ECF No. 105). 	Present were Defendant
Takiguchi and his counsel, Crystal Glendon, Esq., Assistant
United States Attorney Craig Nolan for the Government, and the
four co-Defendants and their respective counsel.
In reviewing the Magistrate Judge’s release order under 18
U.S.C. § 3145, this Court applies a de novo standard of review.
United States v. Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990).
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In the instant matter the Court has considered the papers
on file, including the Government’s Motion to Detain Defendant
Takiguchi Without Bail, the Government’s Notice of Appeal, and
the report of Pretrial Services. 	The Court listened to the
recording of the arguments and proffers of the Parties at the
detention hearing before the Magistrate Judge on September 14,
2023. 	The Court then heard the arguments and proffers of the
Parties at the hearing before this Court on September 18, 2023.
(ECF No. 114).
A detention hearing was warranted because the Government
proved, by a preponderance of the evidence, that this case
involves a serious risk that Defendant Takiguchi will obstruct
or attempt to obstruct justice or threaten, injure, or
intimidate, or attempt to threaten, injure, or intimidate, a
prospective witness pursuant to 18 U.S.C. § 3142(f)(2)(B).
On September 18, 2023, the Court held a detention hearing
to evaluate whether there are conditions of release that will
reasonably assure the appearance of Defendant Takiguchi as
required and the safety of any other person and the community
pursuant to 18 U.S.C. § 3142(g).
The Government’s Proffer Before The District Court on September
18, 2023:
Defendant Takiguchi is charged in the Second Superseding
Indictment with one count of conspiracy to obstruct justice
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(Count 5) and two counts of obstruction of justice (Counts 6 and
7). (ECF No. 68).
The Government proffered that Defendants Albert Bactad,
Wayne Inouye, Robin Takiguchi, and Mahina Bactad worked together
to intimidate and procure a purportedly false written affidavit
from the carjacking victim identified in Count 2 of the Second
Superseding Indictment as Person 1.
The Government also proffered that Defendants Albert
Bactad, Wayne Inouye, Robin Takiguchi, and Mahina Bactad worked
together to intimidate and procure a purportedly false written
affidavit from the kidnapping victim identified in Count 4 of
the Second Superseding Indictment as Person 2.
The Government proffered that Defendants Albert Bactad,
Wayne Inouye, Robin Takiguchi, and David Borges are all members
of the United Samoan Organization (“USO”) Gang, which the
Government alleges is known for its commission of drug and
violent crimes.
The Government proffered that Defendant Albert Bactad used
his wife Defendant Mahina Bactad to direct the actions of
Defendant Inouye and Defendant Takiguchi to obstruct justice in
this case. 	The Government proffered that Defendants Inouye and
Takiguchi jointly confronted the two alleged victims in early
August 2023 and procured the purportedly false written
statements from the two alleged victims. 	The proffer by the
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Government is that both victims believed that if they refused to
sign the allegedly false statements, they would be assaulted.
The Government contends the victims were previously assaulted by
Defendants Borges and Albert Bactad during the extortion,
carjacking, brandishing of a firearm, and kidnapping charges in
Counts 1-4 of the Second Superseding Indictment. 	(ECF No. 68).
The Government proffered that Defendant Mahina Bactad
received the false written statements and delivered them to
Albert Bactad’s attorney Andrew Kennedy (who has since been
permitted to withdraw as counsel) with the intention that the
statements would obstruct justice and disrupt the trial. 	The
Government pointed out that the two purportedly fraudulent
statements were designated by Albert Bactad’s then-counsel as
defense trial exhibits for trial. 	(ECF No. 62).
The Government further represented that it possesses
evidence of the foregoing in the form of recorded phone calls
between Defendant Albert Bactad, who was detained at the Federal
Detention Center Honolulu, and his wife Defendant Mahina Bactad.
The Government proffered that in the conversations between
Defendants Albert and Mahina Bactad they spoke explicitly and in
code about their plan to obstruct justice and interfere with the
trial.
The Government also proffered evidence at the September 18,
2023 hearing that was not proffered before the Magistrate Judge
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on September 14, 2023. 	Among the new evidence proffered by the
Government was the representation that the Government possesses
a recorded call during which Defendant Mahina Bactad put
Defendant Inouye on her phone to speak with Defendant Albert
Bactad about the alleged conspiracy to obstruct justice. 	The
Government proffered that during the call Defendant Inouye
mentioned Victim Person 2 by name, causing Defendant Albert
Bactad to become angry and to hang up.
ANALYSIS
The Government properly sought detention of Defendant
Takiguchi on the basis that this case involves a serious risk
that the Defendant will obstruct or attempt to obstruct justice,
or threaten, injure, or intimidate, or attempt to threaten,
injure, or intimidate, a prospective witness pursuant to 18
U.S.C. § 3142(f)(2)(B); see United States v. Figueroa-Alvarez,
__ F.Supp.3d __, 2023 WL 4485312, *4-*5 (D. Id. July 10, 2023)
(explaining the government’s burden to establish a basis for a
detention hearing pursuant to 18 U.S.C. § 3142(f)(2) is
different than the government’s burden to establish that a
defendant should be detained pending trial pursuant to 18 U.S.C.
§ 3142(g)).
In reviewing the Government’s Motion for Detention, the
Court considers whether any condition or combination of
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conditions will reasonably assure the appearance of Defendant
Takiguchi as required, and the safety of any other person and
the community pursuant to factors set forth in 18 U.S.C. §
3142(g). 	United States v. Motamedi, 767 F.2d 1403, 1406 (9th
Cir. 1985).
The burdens of proof differ with respect to the risk of
non-appearance and the dangerousness prongs of the statute.
Motamedi, 767 F.2d at 1406. 	The standard of proof for detention
based on risk of non-appearance is preponderance of the
evidence. 	Id. 	The standard of proof based on the Defendant’s
dangerousness must be supported by clear and convincing
evidence. 	Id.; United States v. Hir, 517 F.3d 1081, 1086 (9th
Cir. 2008). 	In making these determinations, the Court considers
four factors:
(1) 	the nature and circumstances of the offense charged;
(2) 	the weight of the evidence against the defendant;
(3) 	the history and characteristics of the defendant,
including the defendant’s character, family ties,
employment, financial resources, community ties, past
conduct, drug or alcohol abuse history, and criminal
history; and
(4) 	the nature and seriousness of the danger to any person
or the community that would be posed by release.
18 U.S.C. § 3142(g); Hir, 517 F.3d at 1086.
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(1) 	The Nature And Circumstances Of The Offense Charged
The offenses charged against Defendant Takiguchi are
extremely serious. 	Obstruction of justice impedes the criminal
justice system by attacking its integrity and fairness, and
perverting court processes that depend upon the willingness of
witnesses, including victims, to appear in court and provide
truthful information. 	Further, the alleged obstruction has
already impacted this matter by forcing a continuance of trial
to accommodate the additional charges and additional Defendants.
Significantly, Defendant Takiguchi is charged with
intimidating the alleged victims of the kidnapping and
carjacking charges for which Defendant Borges and Defendant
Albert Bactad are charged in Counts 1-4 of the Second
Superseding Indictment. 	(ECF No. 68). 	The Government claims
that Defendant Takiguchi participated in the obstruction of
justice because he is a member of the same gang as Defendants
Borges and Albert Bactad. 	The Government charged Defendant
Takiguchi as having both conspired to obstruct justice and
actually obstructed justice with respect to the trial before
this Court.
(2) 	The Weight Of The Evidence Against Defendant Takiguchi
The weight of the evidence is the least important factor,
but the weight of the evidence based on the proffer provided by
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the Government appears strong. 	Among the proffered evidence are
recorded phone calls between and among Defendant Albert Bactad
and Defendant Mahina Bactad discussing the charged conspiracy
and acts of obstruction. 	The Government also proffered that
Defendant Inouye participated in a recorded phone call where he
named one of the victims. 	The Government states that it intends
to present testimony by the two victims who had direct contact
with Defendants Inouye and Takiguchi.
The proffer also indicated that the testimony of Defendant
Albert Bactad’s former counsel Andrew Kennedy may be presented.
The Government proffered that Mr. Kennedy allegedly received
false written statements from Defendant Mahina Bactad as part of
the plan to obstruct the trial. 	The Government proffered that
the evidence is consistent with recorded conversations between
the Bactads. 	The Government also pointed out that the
purportedly false statements were marked as trial exhibits by
Attorney Kennedy. 	(ECF No. 62).
(3) 	The History And Characteristics Of Defendant Takiguchi
The Government proffered that Defendant Takiguchi is an USO
gang member. 	The Government proffered that Defendant Takiguchi
participated in the conspiracy and obstructed justice because
Defendant Borges, Defendant Albert Bactad, and Defendant Inouye
are each USO members.
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Defendant Takiguchi has a long criminal history. 	Defendant
Takiguchi has been charged with 16 felonies, resulting in four
felony convictions; eight misdemeanors, resulting in three
convictions; and 17 petty offenses, resulting in ten
convictions. 	Defendant Takiguchi has been charged by the State
of Hawaii 11 times with contempt of court. 	Defendant Takiguchi
has had his probation or parole revoked six times. 	Defendant
Takiguchi’s history reflects an inability or unwillingness to
abide by court orders.
(4) 	The Nature And Seriousness Of The Danger To Any Person
Or Community That Would Be Posed By Release
Defendant Takiguchi poses a danger to the community,
specifically to the victims and witnesses involved in this
trial. 	Defendant Takiguchi has already been charged with
conspiracy to obstruct justice and obstruction of justice with
respect to the case before the Court. 	The nature and
circumstances of the offenses charged are extremely serious.
The Court finds by a preponderance of the evidence that
there are no conditions or combination of conditions that would
reasonably assure the appearance of Defendant Takiguchi as
required. 	Defendant Takiguchi has a history of failing to
comply with court orders, has numerous charges for contempt of
court, and had his probation or parole revoked numerous times.
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The Court finds by clear and convincing evidence that no
conditions or combination of conditions would reasonably assure
the safety of the community if Defendant Takiguichi were
released pending trial. 	The serious nature and circumstances of
the conspiracy and obstruction of justice charges, the weight of
the evidence, Defendant Takiguchi’s long and extensive criminal
history, and the nature and seriousness of the danger to the
community support detention pending trial.
CONCLUSION
The Court GRANTS the appeal of the Government and ORDERS
Defendant Takiguchi BE DETAINED pending trial. 	Defendant
Takiguchi is remanded to the custody of the United States
Marshal.
DATED: 	September 29, 2023, at Honolulu, Hawaii.
________________________________________________________________
United States v. Robin Takiguchi, Crim. No. 23-00050 HG-04;
ORDER GRANTING THE GOVERNMENT’S APPEAL OF THE MAGISTRATE JUDGE’S
ORDER AND GRANTING GOVERNMENT’S MOTION TO DETAIN DEFENDANT
PENDING TRIAL
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