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.
WAYNE INOUYE, 	(03)
Defendant.
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CR. NO. 23-00050 HG-03
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 Inouye Without Bail. 	For the reasons stated below,
the appeal is GRANTED, and Defendant Wayne Inouye 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. 104). 	Present were Defendant
Inouye and his counsel, Rustam Barbee, 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
Inouye 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 Inouye 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 Inouye 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 Inouye 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
Inouye 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
Inouye 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.
(1) 	The Nature And Circumstances Of The Offense Charged
The offenses charged against Defendant Inouye are extremely
serious. 	Obstruction of justice impedes the criminal justice
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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 Inouye 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 Inouye 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 Inouye 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 Inouye
The weight of the evidence is the least important factor,
but the weight of the evidence based on the proffer provided by
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
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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 Inouye
The Government proffered that Defendant Inouye is an USO
gang member. 	The Government proffered that Defendant Inouye
participated in the conspiracy and obstructed justice because
Defendant Borges, Defendant Albert Bactad, and Defendant
Takiguchi are each USO members.
Defendant Inouye has a long criminal history. 	Defendant
Inouye has been charged with 5 felonies, resulting in one felony
conviction for Robbery; 26 misdemeanors, resulting in 11
convictions, including multiple convictions for Assault and a
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conviction for Assault Against A Law Enforcement Officer in the
First Degree; and 6 petty offenses, resulting in three
convictions. 	Defendant Inouye has been charged by the State of
Hawaii 17 times with contempt of court. 	Defendant Inouye has
also had his probation or parole revoked. 	Defendant Inouye’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 Inouye poses a danger to the community,
specifically to the victims and witnesses involved in this
trial. 	Defendant Inouye 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 Inouye as
required. 	Defendant Inouye has a history of failing to comply
with court orders, has numerous charges for contempt of court,
and had his probation or parole revoked.
The Court finds by clear and convincing evidence that no
conditions or combination of conditions would reasonably assure
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the safety of the community if Defendant Inouye were released
pending trial. 	The serious nature and circumstances of the
conspiracy and obstruction of justice charges, the weight of the
evidence, Defendant Inouye’s long and extensive criminal
history, which includes convictions for Robbery, Assault, and
Assault Against A Law Enforcement Officer, along with 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 Inouye BE DETAINED pending trial. 	Defendant Inouye is
remanded to the custody of the United States Marshal.
DATED: 	September 29, 2023, at Honolulu, Hawaii.
________________________________________________________________
United States v. Wayne Inouye, Crim. No. 23-00050 HG-03; 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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