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WILLIAM P. BARR
Attorney General
ROBERT S. BREWER, JR.
United States Attorney
MICHAEL G. WHEAT, CBN 118598
JOSEPH J.M. ORABONA, CBN 223317
JANAKI S. GANDHI, CBN 272246
COLIN M. MCDONALD, CBN 286561
Special Attorneys to the Attorney General
United States Attorney’s Office
880 Front Street, Room 6293
San Diego, CA 92101
619-546-8437/7951/8817/9144
michael.wheat@usdoj.gov
Attorneys for the United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CR NO. 17-00582-04 JMS-WRP
UNITED STATES OF AMERICA,
Plaintiff,
v.

UNITED STATES’ SENTENCING
MEMORANDUM AS TO
DEFENDANT MINH-HUNG
NGUYEN (REDACTED)

MINH-HUNG NGUYEN (4),
Defendant.

Date: March 18, 2020
Time: 1:30 p.m.
Judge: Hon. J. Michael Seabright

UNITED STATES’ SENTENCING MEMORANDUM
Defendant Minh-Hung “Bobby” Nguyen, a sworn police officer, conspired to
have Gerard Puana prosecuted and imprisoned for a crime he did not commit.
Nguyen played a ubiquitous role in the conspiracy against Mr. Puana, from coaxing
intel from Mr. Puana’s elderly mother, to retrieving video surveillance, to falsely
identifying Mr. Puana in the surveillance video, to generating false police reports, to

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coordinating false storylines with co-conspirators, and more. Once Mr. Puana’s case
was finally dismissed, Nguyen tripled down on the myriad of lies he and his coconspirators planted: he repeatedly lied to the Honolulu Ethics Commission; he lied
to federal agents; and he lied—multiple times—to the grand jury. Nguyen’s flagrant
abuse of power and endless obstructive behavior caused incalculable damage to the
Puana family, the Honolulu Police Department, and the Honolulu community.
The appropriate Guideline range for Nguyen’s crimes, which were performed
under color of law and resulted in a significant disruption of a governmental
function, is as follows:
Guideline
1. Base Offense Level: § 2J1.2(a)
2. Interference With Admin. of Justice: § 2J1.2(b)(2)
3. Destroy/Alter Object/Record: § 2J1.2(b)(3)
4. Abuse of Position of Trust: § 3B1.3
5. Obstructing Administration of Justice: § 3C1.1
6. Combination of Factors: § 5K2.0

Level
14
+3
+2
+2
+2
+4

-------------------------------------Adjusted Offense Level
Criminal History Category
Guideline Range

-------27
I
70-87 months

For reasons outlined below, the United States recommends a total custodial
sentence of 87 months,1 three years of supervised release, a $25,000 dollar fine, and
$400 in special assessments. Lastly, the Court should remand Nguyen into custody

1

60 months—the statutory maximum—on Count 1.
2

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following sentencing. Nguyen has been on bond pending sentencing for nearly nine
months. No further delay is warranted.
I
FACTUAL BACKGROUND
As a preliminary point, there is no question that seeking to frame an innocent
man was the goal of this criminal conspiracy. That was established beyond a
reasonable doubt at trial. The most straightforward proof is the guilty verdict on
Count 2. On that count, the jury found Louis Kealoha guilty of testifying falsely at
Puana’s trial that Puana was the “person depicted in the surveillance video of the
alleged mailbox theft[.]” ECF No. 824 at 302 (jury instructions on Count 2). Under
Pinkerton, the jury also found Nguyen, along with Katherine Kealoha and Derek
Hahn, guilty of Count 2. That means the jury found beyond a reasonable doubt that
Louis Kealoha’s false identification of Puana was “in furtherance of the conspiracy”
and “fell within the scope of the unlawful agreement and could reasonably have been
foreseen to be a necessary or natural consequence of the unlawful agreement.” Id. at
34. Moreover, Nguyen himself was found guilty of falsely identifying Puana as the
thief in his grand jury testimony. Accordingly, though the civil rights guidelines do
not technically apply, this is unmistakably a civil rights case.

2

The pin cite here and throughout refers to the pagination generated by
CM/ECF, located at the top right of the filed document.
3

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outlines the widereaching facts of this case, which are well-known to the Court. This factual
background will therefore not revisit all the facts relevant to sentencing; rather, this
background serves to reinforce

and bring to remembrance

some finer details established at trial and otherwise present in the case.
A.

June 27, 2011: Nguyen, Katherine Kealoha, and Others Unlawfully
Enter and Search Gerard Puana’s Home and Steal His Property

On June 27, 2011, Gerard Puana was arrested following a dispute with his
neighbor.

Immediately after Puana was taken into custody,

Katherine Kealoha led an HPD search of G. Puana’s residence, without a search
warrant.

. According to Puana’s trial testimony, various items of his

personal property went missing that day, including $15,000 in cash. Several years
later, Katherine Kealoha mailed some of the items back to Puana (but not the
$15,000).

According to Jaunette Demello’s trial testimony, she went to

Puana’s house that day and saw “cops in the bedroom”; an officer “rummaging
through the glove box and the seat” of Puana’s car; and an officer on Puana’s
computer. ECF No. 761 at 60-69. Demello recognized one of the officers as Nguyen.
Id. at 69 (“I recognized Bobby”).
There is no dispute Nguyen was present during the unlawful entry and search
of Puana’s house: Nguyen admitted being there during his grand jury testimony.
Trial Exhibit 75-13A. He admitted that Puana had just been arrested, and that he
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arrived on the scene “as a support person.” He admitted he was “in the house” with
Katherine Kealoha and another police officer, Maile Rego (his then-wife). He also
admitted that no warrant had been issued for Puana’s house.
B.

June 19, 2013: While on Duty, Nguyen Conducts an Illegal
Surveillance and Intelligence Gathering Operation on Florence
and Gerard Puana in Preparation for the Staged Mailbox Theft

On June 19, 2013, while on duty, Nguyen (and another officer, Brandon
Fukuda) traveled to Katherine Kealoha’s civil deposition at the HGEA building.3
Gerard Puana and Florence Puana were present for the deposition. Phone records
show Nguyen and Katherine Kealoha pre-planned Nguyen’s trip to the HGEA
building. Indeed, Nguyen and Katherine Kealoha communicated extensively leading
up to the deposition (and even during the deposition, which started around 8:55
a.m.). See ECF No. 970 at 8-9 (Trial Exhibit 19-1). At trial, Florence Puana testified
that—after she left the deposition and encountered Nguyen in the lobby—Nguyen
“asked [her] questions about Gerard,” which she thought was “silly.” ECF No. 6961 at 19. Specifically, Nguyen asked her what kind of car Gerard drove. Id. at 20.
Florence mistakenly said “white” – the same color as the car that absorbed the
“stolen” mailbox two days later.
//
//

3

Fukuda testified at trial that he did not know why Lt. Hahn sent them there.
5

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C.

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June 22, 2013: Nguyen Retrieves the Mailbox Footage Before the
Alleged Crime Is Even Reported

Before Katherine Kealoha reported the mailbox missing to the real police,
Nguyen recovered the surveillance footage from the Kealohas’ home.
Nguyen’s own testimony—before the grand jury and Ethics Commission—place
him there that morning. Immediately before calling 9-1-1 to report the “theft,”
Katherine Kealoha called Nguyen. See ECF No. 970 at entries 171-172.
D.

June 22, 2013: Nguyen Is the First to Falsely Identify Gerard Puana
as the Mailbox Thief

Ultimately, only three people claimed Gerard Puana was the person in the
mailbox video: Louis Kealoha, Katherine Kealoha, and Bobby Nguyen. Nguyen was
the first. That occurred while watching the surveillance video with Niall Silva at
HPD headquarters on Saturday, June 22.
That false identification jumpstarted the investigation and
continuous surveillance of Gerard Puana.

As outlined
in the attached Declaration of Susan Ballard, the surveillance of Gerard Puana
significantly disrupted the activities of the Honolulu Police Department.
E.

June 25, 2013: Nguyen Sets Up Video Viewings at the Kealoha
Residence

Officer Nalei Sooto testified at trial that on Tuesday, June 25, 2013—a few
days after the “theft”—he and other officers met Nguyen in a pool house on the
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Kealohas’ property. ECF No. 782 at 12. Nguyen directed Sooto to a laptop and told
him to watch the surveillance video. Id. at 13. Sooto saw “a grainy object of
somebody taking a mailbox.” Id. at 14. He could not identify anyone in the video—
“not at all.” Id. at 15. While Sooto frequently watched surveillance video as part of
his duties, this was the only time he did so at the Kealohas’ property. Id. at 47.
F.

June 27, 2013: Nguyen Creates a False Burglary Report to Further
Tarnish Gerard Puana

On June 27, 2013, further using their police powers to target Gerard Puana,
Nguyen—in tandem with his co-conspirators—wrote a false police report,
identifying Gerard Puana as a possible burglary suspect (Trial Exhibit 29-4). As trial
testimony established, the dogpiled allegations against Puana—coming from
seemingly unassailable sources: the Chief of Police, a Deputy Prosecutor, and
members of the Criminal Intelligence Unit—made unwitting officers more willing
to blindly accept that Puana was a mailbox thief and burglar (and elder abuser, and
so on). For example, here is a trial exchange regarding the burglary report between
Nguyen’s counsel and Dru Akagi, the homicide detective assigned to investigate the
mailbox theft and burglary:
Counsel:

And it’s [referring to the burglary report] listing Gerard
Puana as a possible suspect. This is not unusual to you,
correct?

Akagi:

Correct.

Counsel:

Given what you know or what you -- what you’ve been
told about the mailbox theft, correct?
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Akagi:

Correct.

Counsel:

And now I understand you're still investigating the
mailbox case, correct?

Akagi:

Correct.

Counsel:

Okay. But it makes sense to you that he would be a suspect
given the allegations concerning the mailbox theft?

Akagi:

Yes, that’s possible.

Counsel:

And you were also -- and it was also relayed to you that
there was this ongoing civil lawsuit?

Akagi:

Yes.

Counsel:

Okay. So those motives made sense to you?

Akagi:

(No response.)

Counsel:

In other words, you didn’t question that Gerard Puana
was a possible suspect in this burglary case?

Akagi:

No, I didn’t.

ECF No. 759 at 61-62 (emphasis added).
G.

July 5, 2013: Again, Nguyen Falsely Identifies Gerard Puana In
Interview With Postal Inspector

At trial, Postal Inspector Brian Shaughnessy testified that he interviewed
Nguyen on July 5, 2013 (after obtaining Nguyen’s number from Katherine Kealoha).
During that interview, Nguyen falsely identified Gerard Puana as the “individual
who stole the mailbox.” ECF No. 733 at 10-11.4
//

4

Immediately after his conversation with Inspector Shaughnessy, Nguyen
called Katherine Kealoha and then Niall Silva. See ECF No. 970 at entries 663-666.
8

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H.

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December 4, 2014: Nguyen Prepares to Testify Falsely at Puana’s Trial

On December 4, 2014, the date of Puana’s trial, Nguyen was in the witness
room, prepared to testify falsely that Puana was the thief. See ECF No. 736 at 115.
Nguyen avoided perjury only because Louis Kealoha caused a mistrial before
Nguyen was called to the stand.
I.

May 15, 2015: Nguyen Testifies Falsely Before the Ethics Investigator

At trial, the United States introduced audio recordings of Nguyen’s testimony
to the Honolulu Ethics Commission investigator on May 15, 2015. He made several
false statements during this testimony, including: (1) that Niall Silva retrieved the
surveillance video from the Kealohas’ house (Nguyen said he was there to assist
Niall; “I had the combination to the gate to let him in”); and (2) that he was at the
HGEA building at the time of Katherine Kealoha’s deposition because he “was just
in the area,” – “just, um, hanging out” with his partner. Trial Exhibit 75-15D.
J.

November 24, 2015: Nguyen Makes False Statements to the FBI

On November 24, 2015, Nguyen met with the FBI. He repeated the lie about
Niall Silva retrieving the hard drive from the Kealohas’ home. The agents asked
Nguyen whether he had any conversations with Katherine Kealoha or Louis Kealoha
the week of the theft. Nguyen “responded that at that point, it was none of his
business, he was curious, but did not ask.” The phone records, however, show that
he made phone contact with Katherine Kealoha dozens of times between June 22
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and June 29, 2013. Nguyen told the FBI that he was “100 percent” certain it was
Puana in the surveillance video.
K.

April 21, 2016: Nguyen Testifies Falsely Before the Federal
Grand Jury

As the jury found beyond a reasonable doubt, on April 21, 2016, Nguyen
testified falsely before the grand jury that he was standing next to Silva at the
Kealohas’ residence when the original hard drive containing the surveillance video
was retrieved from the residence, and falsely claimed that Gerard Puana was the
person depicted in the surveillance video. ECF No. 838 (Verdict Form, Count 6).
L.

May 19, 2016: Again, Nguyen Testifies Falsely Before the Federal
Grand Jury

As the jury found beyond a reasonable doubt, on May 19, 2016, Nguyen
testified in a false and misleading manner before the grand jury by stating that he did
not recall communicating with Silva about the false information they were providing
to USPIS and in G. Puana’s criminal trial. ECF No. 839 (Verdict Form, Count 8).
II
THE GUIDELINES
A.

Base Offense Level

The counts of conviction are grouped under § 3D1.2(b). The applicable
Guideline for the group is § 2J1.2 (“Obstruction of Justice”). The base offense level
is 14. USSG § 2J1.2(a).
//
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B.

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Specific Offense Characteristics
two specific offense characteristics apply.

First, under § 2J1.2(b)(2), three levels are added because the offense resulted
in substantial interference with the administration of justice. “Substantial
interference” includes “an indictment, verdict, or any judicial determination based
upon perjury, false testimony, or other false evidence; or the unnecessary
expenditure of substantial governmental or court resources.” USSG § 2J1.2, cmt.
n.1. Nguyen agrees this enhancement applies. See ECF No. 917 at 6.
Second, § 2J1.2(b)(3) requires an additional two-level enhancement if any one
of the following apply:
[T]he offense (A) involved the destruction, alteration, or fabrication of
a substantial number of records, documents, or tangible objects; (B)
involved the selection of any essential or especially probative record,
document, or tangible object, to destroy or alter; or (C) was otherwise
extensive in scope, planning, or preparation[.]
USSG § 2J1.2(b)(3). At least two prongs, if not all three, apply here. Beginning with
the third, the facts outlined above

establish this criminal conspiracy—

spanning years and involving myriad false statements, false reports, evidence
destruction, coordination of false testimony, and more—was extensive in scope,
planning, or preparation.5 Under the second prong, the mailbox itself and the
See, e.g., United States v. Bakhtiari, 714 F.3d 1057, 1062 (8th Cir. 2013) (“As
noted above, Bakhtiari engaged in extensive planning to obtain the photographs of
B.H.’s house and family members, create a false email account, and otherwise plan
and disguise his actions. Although we can locate no Eighth Circuit caselaw
11
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surveillance video independently qualify as “essential or especially probative”
records or objects that were altered (the mailbox) and destroyed (the surveillance
video).6 Finally, under the first prong, while the Guidelines do not define a
“substantial number,” it arguably fits: (1) Katherine Kealoha altered the initial police
report to inflate the value of the mailbox; (2) the co-conspirators altered the mailbox;
(3) the co-conspirators created multiple false burglary reports; and (4) the coconspirators destroyed critical surveillance video.
With these enhancements, the offense level rises to 19.
C.

Chapter Three Adjustments

Next, Chapter Three adjustments are to be “made on the basis of all conduct
within the scope of § 1B1.3 (Relevant Conduct, i.e., all conduct included under

heretofore applying this enhancement, Bakhtiari’s conduct is no narrower in scope
than the conduct of other defendants whose sentences have been enhanced in other
circuits.”); United States v. Petruk, 836 F.3d 974, 977 (8th Cir. 2016) (“Petruk’s
elaborate and complicated scheme to corrupt a prosecution with false evidence was
‘extensive in planning [and] preparation,’ like the “gathering together of lies and
misrepresentations” in United States v. Rodriguez, 499 Fed. App’x 904, 909 (11th
Cir. 2012) (unpublished) (full cite added), and the ‘extensive planning’ undertaken
to intimidate an opposing lawyer and his family in Bakhtiari, 714 F.3d at 1062.”).
6

As an example, in United States v. Mathews, 874 F.3d 698, 701-02 (11th Cir.
2017), the Eleventh Circuit considered a case where the defendant had falsified
medical records to conceal his inadequate care of a patient who died. The Court
affirmed the application of a § 2J1.2(b)(3)(B) enhancement because the defendant
had “‘selected’ the . . . record as the target of his alterations in order to derail and
deceive that investigation.” Id. at 705; see also United States v. Kesoyan, 782 F.
App’x 576, 577 (9th Cir. 2019) (unpublished) (affirming § 2J1.2(b)(3)(B)
enhancement; finding Mathews persuasive and stating that “Kesoyan similarly
falsified records ‘in order to derail and deceive [an] investigation.’”).
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§ 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count
of conviction.” USSG Part B, Introductory Commentary (p. 351 of 2018
Guidelines). In other words, “[i]n applying the abuse of trust adjustment, sentencing
courts may now consider relevant conduct other than that involved in the offense of
conviction.” United States v. Duran, 15 F.3d 131, 133 (9th Cir. 1994).
1.

Abuse of Position of Trust - § 3B1.3

Section 3B1.3 states, “[i]f the defendant abused a position of public or private
trust, or used a special skill, in a manner that significantly facilitated the commission
or concealment of the offense, increase by 2 levels.” USSG 3B1.2. “This adjustment
applies to persons who abuse their positions of trust or their special skills to facilitate
significantly the commission or concealment of a crime.” USSG § 3B1.3
(Background Commentary Note). This enhancement applies here.
For instance, in United States v. Foreman, 926 F.2d 792 (9th Cir. 1990), the
Ninth Circuit affirmed application of this enhancement to a police officer who
showed her badge in response to police questioning in an apparent attempt to
dissuade the officers from proceeding further with their investigation of the
defendant’s drug crimes. The Ninth Circuit stated, “police officers are accorded
public trust to enforce the law. The public, including fellow law enforcement agents,
expect that police officers will not violate the laws they are charged with enforcing.
Foreman took advantage of that trust to make it easier for her to conceal criminal
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activity. We believe that this is precisely the type of situation contemplated by §
3B1.3 as an abuse of position of public trust.” Id. at 796.
Similarly, but much more flagrantly, Nguyen and his co-conspirators abused
their positions within law enforcement to facilitate the offenses committed. Like
Foreman’s attempt to flash her badge to dissuade officers from investigating her,
Nguyen and his co-conspirators flashed their proverbial badges to ensure the
investigation and prosecution of Gerard Puana. And that is only the beginning of the
abuse of position of trust. As a member of the Criminal Intelligence Unit, Nguyen
had access to the HPD-owned video surveillance system at the Kealohas’ residence;
he also had access, along with his co-conspirators, to confidential legal databases,
which they accessed to run searches on Puana and his associates; and Nguyen and
his co-conspirators used their positions to concoct fabricated police reports casting
Puana as a criminal. Nguyen’s abuse of his position of trust made these offenses
possible.
This two-level increase brings the offense level to 21.
2.

Obstructing the Administration of Justice - § 3C1.1

The Guidelines call for a two-level enhancement where the defendant
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing
of the instant offense of conviction, and (2) the obstructive conduct related to (A)
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the defendant’s offense of conviction and any relevant conduct; or (B) a closely
related offense[.]” USSG § 3C1.1. This enhancement applies where a defendant
commits perjury during the course of a criminal investigation or gives a materially
false statement to law enforcement that significantly obstructs or impedes the
investigation or prosecution of the instant offense. Id., cmt. n.4.7
The Guidelines further state that “[t]his adjustment also applies to any other
obstructive conduct in respect to the official investigation, prosecution, or sentencing
of the instant offense where there is a separate count of conviction for such conduct.”
Id. (emphasis added); see United States v. Davist, 481 F.3d 425, 427 (6th Cir. 2007)
(“Perhaps more important than the Guidelines provision itself is Application Note 4,
which indicates that the § 3C1.1 enhancement is to apply ‘to any other obstructive
conduct in respect to the official investigation, prosecution, or sentencing of the
instant offense where there is a separate count of conviction for such conduct.’ Here,
in addition to his underlying offenses of false claims and conspiracy to defraud,
Davist pled guilty to exactly such obstructive conduct: namely, the two counts of
making false statements to a federal official.”); USSG § 3C1.1, cmt. n.8 (calling for
grouping of the obstruction offense and any underlying offense; stating, “[t]he

7

The United States previously overlooked the absence of this enhancement in
the draft PSR, and thus did not address it in its Sentencing Statement.
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offense level for that group of closely related counts will be the offense level for the
underlying offense increased by the 2-level adjustment specified by this section[.]”).
Here, Nguyen willfully—and repeatedly—obstructed the investigation of
Count 1, the criminal conspiracy. The investigation into Gerard Puana’s arrest and
prosecution began in early 2015. After the investigation began, as outlined in the
factual background above, Nguyen made materially false statements to the FBI and
to the grand jury about Puana’s arrest (including falsely identifying Puana, falsely
claiming Niall Silva recovered the surveillance video, and more). The jury found
Nguyen guilty of two separate obstructive acts—giving false testimony—before the
grand jury. See Counts 6 and 8. Accordingly, this enhancement applies. See Davist,
481 F.3d at 427; United States v. Charette, 220 F. App’x 721, 723 (9th Cir. 2007)
(unpublished) (“The application notes also require a two-level upward adjustment if
the defendant is convicted of both the underlying offense and an obstruction offense,
unless the offense level for the obstruction is greater. Thus, the same evidence that
supported the jury’s determination that Charette engaged in witness tampering
beyond a reasonable doubt supports the enhancement under § 3C1.1.”).8

8

See also United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011) (Defendant
was convicted of conspiracy, health care fraud, and making false statements to law
enforcement officers; the Court affirmed an obstruction enhancement under § 3C1.1,
stating, “Girod was convicted of making three false statements to federal
investigators regarding whether ANBNO employees provided PCS services to her
children and whether she received kickbacks for signing-off on the false PCS sheets
for her children, and these convictions formed the basis for her § 3C1.1
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This two level increase brings the offense level to 23.
D.

Chapter 5 Upward Departures or, Alternatively, Upward Variances

Section 5K2.0 of the Guidelines states that the “sentencing court may depart
from the applicable guideline range if . . . there exists an aggravating . . .
circumstance . . . of a kind, or to a degree, not adequately taken into consideration
in formulating the guidelines[.]” USSG § 5K2.0(a). The Guidelines set forth
“identified circumstances” which the Sentencing Commission “may have not
adequately taken into considering in determining the applicable guideline range,”
and also permit departures for “unidentified circumstances” which are “nonetheless
relevant to determining the appropriate sentence.” See id. § 5K2.0(a)(2)(A)-(B). The
Court here should increase the Guidelines by four levels, whether as a departure or
variance, to account for aggravating circumstances present which are not adequately
taken into account by the Guidelines.
First, the Guidelines do not adequately take into account the fact that these
crimes were committed under color of law. Recognizing the injustice inherent in

enhancement”); United States v. Richardson, 732 F. App’x 822, 829-30 (11th Cir.
2018) (unpublished) (“The district court applied the enhancement because of
Appellant’s false statements to the FBI. Because we affirmed that conviction, . . .
the enhancement under § 3C1.1 must also stand.”); United States v. Mathis, 186 F.
App’x 971, 979 (11th Cir. 2006) (unpublished) (“Although we have not done so
before, here, we agree with other federal appellate courts that have applied the
obstruction of justice enhancement where the defendant was convicted on multiple
charges, including on a separate charge of obstructive conduct.”).
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police depriving citizens of rights, the civil-rights guideline calls for a six-level
enhancement for crimes committed under “color of law.” See § 2H1.1(b). But this
enhancement simply does not appear in the obstruction guideline. Accordingly,
§ 5K2.0 should operate to fill this hole in the Guidelines.
There is no question the crimes here were committed under color of law. As
the Supreme Court has stated, “[m]isuse of power, possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state
law, is action taken ‘under color of’ state law.” United States v. Classic, 313 U.S.
299, 326 (1941). “Acts of officers who undertake to perform their official duties are
included whether they hew to the line of their authority or overstep it.” Screws v.
United States, 325 U.S. 91, 111 (1945); see id. (“If, as suggested, the statute was
designed to embrace only action which the State in fact authorized, the words ‘under
color of any law’ were hardly apt words to express the idea.”).9
The most straightforward example of misuse of power is what happened here:
the police framing an innocent person with a crime, leading to a false arrest and
prosecution. “This case involves illegal conduct by law enforcement officers during
the detention and arrest of criminal suspects, conduct that unquestionably took place

Moreover, “[p]rivate persons, jointly engaged with state officials in the
prohibited action, are acting ‘under color’ of law for purposes of the statute. To act
‘under color’ of law does not require that the accused be an officer of the State. It is
enough that he is a willful participant in joint activity with the State or its agents.”
United States v. Price, 383 U.S. 787, 794 (1966).
18
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under color of law.” United States v. Reese, 2 F.3d 870, 886 (9th Cir. 1993)
(emphasis added). The co-conspirators here targeted Gerard Puana, cloaked with
authority as police officers: they created false police reports identifying Puana as a
criminal suspect; they accessed confidential law enforcement databases to glean
information about Puana; they accessed the HPD-owned surveillance device at the
Kealohas’ house, and then buried—before destroying—the video within the
Criminal Intelligence Unit at HPD; they ordered prolonged and intrusive
surveillance of Puana; they falsely identified Puana, causing an unwitting officer to
falsely arrest him; and finally, once the federal case against Puana was underway,
they flashed their proverbial badges to keep Puana’s prosecution afloat. In short,
what happened here could not have happened absent the positions of statesanctioned authority held by the co-conspirators.
Second, § 5K2.7 provides for an upward departure where the defendant’s
conduct “resulted in a significant disruption of a governmental function[.]” USSG
§ 5K2.7. The United States previously briefed the propriety of this departure in its
sealed Sentencing Statement, ECF No. 916. We incorporate those arguments here.
Additionally, we supplement our prior analysis with the Declaration of Susan
Ballard, Chief of the Honolulu Police Department. See ECF No. 969. Chief Ballard’s
declaration sets forth in detail how the vast amount of resources devoted to

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surveilling Gerard Puana resulted in a significant disruption of the function of the
Honolulu Police Department.
According to Chief Ballard, the island of Oahu is divided into eight patrol
districts. District 6 encompasses Waikiki. Because of the “high concentration of
tourist activity, large events, and other factors, District 6 in Waikiki presents
significant law enforcement challenges for the Department.” Ballard Decl. ¶ 5. The
crime density there is higher than any other district. Accordingly, “[i]n order to
effectively combat the challenges posed there, District 6 must be adequately staffed
at all times.” Id. The Crime Reduction Unit (CRU) in District 6 “concentrates on
eliminating drugs, prostitution, and violent crimes within District 6.” Id. ¶ 6.
At trial, witness testimony established that between 20 and 30 HPD officers
conducted 24-hour surveillance of Gerard Puana beginning June 25, 2013, and
ending June 29, 2013. See ECF No. 827 at 38-45 (testimony of Daniel Sellers);
That included “close to 15” officers from District 6 CRU. ECF No. 827 at 38,
45 (Q. “[W]hen you said 10 to 15 CIU officers and 15 CRU officers, did you mean
on basically as to any particular day, like every day there was 25 to 30 officers total
conducting surveillance?” A. “From Tuesday, the 25th, to Saturday, the 29th, there
were 20 to 30, yes.”).
According to Chief Ballard, “during [her] thirty-four years with the
Department, [she] [has] never seen or heard of another non-violent theft offense,
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such as an alleged mailbox theft, divert as many Department resources as occurred
in the surveillance of Mr. Puana.” Ballard Decl. ¶ 9. “The reason is that such
prolonged surveillance significantly disrupts the operations of the Department.” Id.
Chief Ballard’s declaration outlines why. In summary, (a) “The commitment
of CRU officers from a single district at one time significantly hinders the unit’s
ability to carry out its routine duties as well as conduct criminal investigations
affecting the district”; (b) “without CRU units available to help investigate and
facilitate interviews and line ups, criminal investigations are covered by a much
smaller group of officers who will eventually struggle to keep up with the caseload”;
and (c) “prolonged surveillance conducted out of district10 also causes organizational
chaos if commanders are not kept informed and district personnel are not
deconflicted.” Id. at ¶¶ 9(a)-(c).
Chief Ballard further states, “[t]his specific instance of prolonged surveillance
was also particularly disruptive because it significantly damaged the reputation of
the department.” Id. ¶ 9(d). “Surveillance such as this would never have been
undertaken for a solitary non-violent theft offense especially without any other
evidence or intelligence elevating it in severity.” “The commitment of such
resources for a seemingly minor offense was impossible to justify, not just within

10

The alleged offense took place in District 7, not District 6.
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the HPD, but to other law enforcement agencies and major city police departments.
It caused significant embarrassment to the [HPD] locally as well as nationally.” Id.
In combination, the color of law aspect of this case and the significant
disruption of a governmental function warrant, at a minimum, a four-level increase
to the advisory guidelines, or an equivalent variance under 18 U.S.C. § 3553. That
brings Nguyen’s offense level to a 27, with a guideline range of 70 to 87 months.
III
SENTENCING FACTORS UNDER 18 U.S.C. § 3553(a)
Section 3553(a) requires that the Court consider, among other factors: (1) the
nature and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need for the sentenced imposed to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment for the offense;
(4) the need for the sentence imposed to afford adequate deterrence to criminal
conduct; and (5) the need for the sentence imposed to avoid unwarranted sentencing
disparities. We address these matters in turn.
A.

The Nature and Circumstances of the Offense

From June 2011 to May 2016, Bobby Nguyen, sworn to uphold the law,
repeatedly broke it instead. His offenses cut at the core mission of the Honolulu
Police Department—to vigilantly protect the citizens of Honolulu. Nguyen’s crimes
were not a one-time lapse of judgment or brief moment of indiscretion: they spanned
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six years. And all that while, Nguyen brought home a police officer’s paycheck.
Making matters worse, Nguyen’s crimes were directed against his own family by
marriage.11 Moreover, while the United States has not formally sought a two-level
vulnerable victim enhancement for Nguyen, it could apply here: Nguyen knew that
Gerard Puana was particularly susceptible to being framed with the mailbox theft,
and he also knew that framing and imprisoning Puana would victimize Florence
Puana. Indeed, Gerard Puana was Florence Puana’s caretaker; removing him from
that role would greatly increase Florence Puana’s vulnerabilities, physically and
mentally.12 Finally, to this day, Nguyen has neither accepted responsibility or shown
any remorse for his actions. The nature and circumstances of the offense support the
recommended sentence.
B.

History and Characteristics of the Defendant

The United States notes that Nguyen’s crimes, unlike most defendants, were
not borne out of personal adversity or financial desperation. Additionally, Nguyen
was not a naïve young man who simply mingled with the wrong crowd – he was 37
years old in 2011 when the targeting of Gerard Puana began. Finally, the scope of

During the relevant time periods, Nguyen was married to Gerard Puana’s
niece (Florence Puana’s granddaughter).
12
For perspective, Nguyen’s advisory range with this enhancement would be 87
to 108 months.
23
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his unlawful conduct while a police officer negates any mitigating value of his lack
of a prior criminal record.
C.

The Need to Reflect the Seriousness of the Offense, Promote Respect
for the Law, and Provide Just Punishment

A substantial sentence is necessary to adequately reflect the seriousness of the
offense, promote respect for the law, and provide just punishment for the offenses
here. Nguyen targeted an innocent man and then chose—repeatedly and flagrantly—
to obstruct and interfere with the search for the truth. The public is not surprised
when criminals stray, but law enforcement officers are held to a higher standard and
are expected to uphold the law.
Additionally, Nguyen’s acts greatly damaged the integrity and reputation of
the Honolulu Police Department. See, e.g., ECF No. 969, Ballard Decl. ¶ 9. “An
officer who causes people to question the integrity and impartiality of law
enforcement undermines the rule of law and disrupts the functioning of all aspects
of law enforcement in both the executive and judicial branches of government.
Confidence in our legal system is undermined when those who are charged with
enforcing the law choose to break the law instead.” United States v. Walker, 21 F.
Supp. 2d 1288, 1293 (N.D. Okla. 1997); see also United States v. Spano, 411 F.
Supp. 2d 923, 940 (N.D. Ill. 2006) (“Public corruption demoralizes and unfairly
stigmatizes the dedicated work of honest public servants”).
//
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D.

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The Need to Afford Adequate Deterrence

A significant sentence is necessary to deter law enforcement officers from
engaging in criminal activity like Nguyen’s. Crimes by law enforcement are
particularly difficult to expose and prosecute. Accordingly, this is an area of crime
that requires robust deterrence. See, e.g., United States v. Hooper, 566 F. App’x 771,
773 (11th Cir. 2014) (unpublished) (general deterrence is “especially compelling in
the context of officials abusing their power”); Spano, 411 F. Supp. 2d 923, 940 (N.D.
Ill.) (“Unlike some criminal justice issues, the crime of public corruption can be
deterred by significant penalties that hold all offenders properly accountable.”). A
low sentence will fail to adequately deter criminal conduct.
As for specific deterrence, while Nguyen will no longer be able to abuse a
position in law enforcement, his lack of remorse and unfailing willingness to deceive
throughout this investigation cuts in favor of a significant custodial term. See United
States v. Seleznev, 766 F. App’x 531, 534 (9th Cir. 2019) (unpublished) (“long
sentence” was reasonable because of, among other things, the defendant’s “general
lack of remorse”).
E.

The Need to Avoid Unwarranted Sentencing Disparities

Section 3553(a)(6) requires the Court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The United States is
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unaware of any case involving similar conduct as that present here. In this regard,
the Guidelines themselves serve as a bulwark against sentencing disparity. See
United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006) (“The Guidelines . . .
are an indispensable tool in helping courts achieve Congress’s mandate to consider
‘the need to avoid unwarranted sentence disparities’ among similarly situated
defendants.”); United States v. Smith, 445 F.3d 1, 7 (1st Cir. 2006) (noting that “the
guideline range . . . is the principal means of complying with” the goal of avoiding
unwarranted sentencing disparity); United States v. Guerrero-Velasquez, 434 F.3d
1193, 1195 n.1 (9th Cir. 2006) (recognizing that guidelines “help to maintain
uniformity in sentencing throughout the country”).
The United States’ sentencing recommendations in this case properly balance
the history, conduct, roles, and acceptance of responsibility of the co-defendants and
results in no unwarranted sentencing disparities. See, e.g., United States v. Winters,
278 F. App’x 781, 783 (9th Cir. 2008) (unpublished) (“A necessary corollary of plea
bargaining is that defendants who go to trial may receive greater sentences than
similarly situated defendants who do not.”); United States v. Winters, 278 F. App’x
781, 783 (9th Cir. 2008) (“A sentencing reduction based on an individual’s
acceptance of responsibility and assistance to the prosecution does not create an
‘unwarranted’ disparity. The district court in this case clearly weighed the relative
roles of each defendant.”); United States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006)
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(“By comparing the sentences of defendants who helped the Government to those
defendants who did not . . . is comparing apples and oranges.”); United States v.
Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc) (co-conspirators “presented
very different circumstances” because one “did not participate in the plan to blow
up LAX nearly to the extent that Ressam did,” and the other pleaded guilty).
IV
SENTENCING RECOMMENDATIONS
A.

Custodial Term

Based on the advisory guideline range and a review of the § 3553(a) factors,
the United States recommends the following custodial sentence:




B.

Count 1 – Conspiracy: 60 months in prison (statutory maximum)
Count 2 – Obstruction: 87 months in prison (concurrent)
Count 6 – Obstruction: 87 months in prison (concurrent)
Count 8 – Obstruction: 87 months in prison (concurrent)
Supervised Release

The United States recommends that the Court impose three years of
supervised release, concurrent, on each count of conviction. See USSG §§ 5D1.1(a),
and 5D1.2(a)(1) (“if a term of supervised release is ordered, the length of the term
shall be . . . [a]t least two years but not more than five years for a defendant convicted
of a Class A or B felony”).
//
//
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Fine and Special Assessments

Under USSG § 5E1.2, the Court “shall impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is not likely to become able to
pay a fine.” “The defendant bears the burden of proving that he is unable to pay a
fine.” United States v. Ladum, 141 F.3d 1328, 1344 (9th Cir. 1998). With an offense
level of 27, the Guideline range for a fine is $25,000 to $250,000. USSG § 5E1.2.
Based on the factors in § 5E1.2(d), the United States recommends a $25,000 fine.13
Nguyen’s targeting of Puana resulted in a “significant loss of resources” to the
Honolulu Police Department. ECF No. 969, Ballard Decl. ¶ 10. Additionally,
Defendant’s obstructive conduct resulted in a lengthy and costly investigation.
Further,

That same profile, including Nguyen’s future earning potential, supports
a $25,000 fine. Finally, the United States recommends $400 in special assessments.
V
REMAND AT SENTENCING
When a defendant has been found guilty and sentenced to a term of
imprisonment, detention is the rule, not the exception. See 18 U.S.C. § 3143; United

13

Even if the Guideline range was $15,000 to $150,000,
, a $25,000 fine—towards the low-end of that range—would be reasonable. By
comparison, Louis Kealoha has agreed to pay approximately $72,000 in restitution.
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States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004) (Section 3143 establishes a
presumption in favor of detention). The Court “shall” order the defendant detained
unless the defendant can establish: (1) by clear and convincing evidence that he is
not a flight risk or danger to the community and (2) that the appeal is not for purpose
of delay and raises a substantial question of law or fact likely to result in reversal, a
new trial, a sentence that does not include any imprisonment, or a reduced sentence
of imprisonment less than the expected duration of the appeal process. 18 U.S.C. §
3143(b); see also United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985).
Bobby Nguyen has the burden to establish each of these prongs. See United States
v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990). He cannot do so. There are no known
“substantial questions of law or fact” which could result in reversal or a new trial.
Nguyen cannot show that a sentence will be imposed that will not include a term of
imprisonment, or a reduced sentence to a term of imprisonment less than the total of
the time already served plus the expected duration of the appeal process.
Even assuming Nguyen could satisfy the second prong of the test, the
imposition of a substantial prison sentence will provide a powerful incentive to flee.
The specter of a multi-year prison sentence for a person who has not spent one day
in jail and has been a police officer represents a flight risk. Nguyen cannot show
otherwise by clear and convincing evidence. Nguyen should be remanded after
sentencing.
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VI
CONCLUSION
Bobby Nguyen repeatedly abused his police powers to target an innocent man.
He then repeatedly obstructed the investigation into his behavior, including by lying
under oath multiple times in multiple venues. For his actions, the Court should
impose a sentence consistent with the United States’ recommendations, including a
term of imprisonment of 87 months.

Dated: March 13, 2020.

Respectfully submitted,
WILLIAM P. BARR
United States Attorney General
ROBERT S. BREWER, JR.
United States Attorney
/s/ Colin M. McDonald
MICHAEL G. WHEAT
JOSEPH J.M. ORABONA
JANAKI S. GANDHI
COLIN M. MCDONALD
Special Attorneys to the Attorney General

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CR NO. 17-00582 JMS-WRP
UNITED STATES OF AMERICA,
CERTIFICATE OF SERVICE
Plaintiff,
v.
MINH-HUNG NGUYEN (4),
Defendant.

IT IS HEREBY CERTIFIED that:
I, Colin M. McDonald, am a citizen of the United States and am at least
eighteen years of age. My business address is 880 Front Street, Room 6293,
San Diego, CA 92101-8893.
I am not a party to the above-entitled action. I have caused service of the
foregoing on all parties in this case by electronically filing the foregoing with the
Clerk of the District Court using its ECF System, which electronically notifies them.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 13, 2020.
/s/Colin M. McDonald
COLIN M. MCDONALD
Special Attorney to the Attorney General

31