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WARNING: THIS DOCUMENT FILED UNDER SEAL
PURSUANT TO CRIMINAL LOCAL RULE 32(j)
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. 17-00582-03 JMS-WRP
UNITED STATES OF AMERICA,
Plaintiff,

UNITED STATES’ SENTENCING
MEMORANDUM (REDACTED)

v.
DEREK WAYNE HAHN (3),

Date: March 18, 2020
Time: 9:30 a.m.
Judge: Hon. J. Michael Seabright

Defendant.

UNITED STATES’ SENTENCING MEMORANDUM
Defendant Derek Wayne Hahn undermined the core values of his sworn duties
as a police officer for the Honolulu Police Department. Instead of protecting and
serving the City and County of Honolulu, he conspired to frame and prosecute an
innocent man, and then to cover up that frame job for years with his co-conspirators.

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Hahn’s unabashed abuse of power caused significant damage to the Puana family,
the Honolulu Police Department, and the community of Honolulu. For these reasons,
Hahn’s sentence must reflect the seriousness of his crimes, which were committed
under color of law, and address the impact on the community.
The appropriate Guidelines calculations for Hahn’s crimes are as follows:
Guideline

Level

1. Base Offense Level: § 2J1.2(a)

14

2. Interference With Admin. of Justice: § 2J1.2(b)(2)

+3

3. Destroy/Alter Object: § 2J1.2(b)(3)

+2

4. Aggravating Role: § 3B1.1(b)

+3

5. Abuse of Position of Trust: § 3B1.3

+2

6. Combination of Factors: § 5K2.0

+4

--------------------------------------

--------

Adjusted Offense Level

28

Criminal History Category

I

Guideline Range

78-97 months

Recommended Sentence

87 months 1

Supervised release

3 years

Fine

$25,000

Special Assessments

$400

In addition, the Court should remand Hahn into custody at the time of
sentencing. No further delay is warranted as he has been on bond pending sentencing
for approximately nine months.

1

The statutory maximum of 60 months for Count 1.
2

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I
FACTUAL BACKGROUND

Therefore, the
United States need not repeat them in detail here. Instead, the United States
highlights certain key facts relating to Hahn that help lay the foundation for the
various Guideline enhancements recommended in this memorandum.
As Lieutenant of the CIU, Hahn played an integral role in all aspects of the
conspiracy to ensure that Gerard Puana – a man who had been labeled a “problem” 2
by Hahn and his co-conspirators – was framed, arrested, and prosecuted. In the
planning stages of the frame job, Hahn directed HPD officers Minh-Hung Nguyen
and Brandon Fukuda to conduct surveillance at Katherine Kealoha’s deposition on
June 19, 2013, and manipulate Florence Puana for information about Gerard’s
vehicle.3

2

At trial, Officer Akagi testified that Hahn told him Gerard was a person of
interest in the mailbox investigation because the Kealohas were having “problems”
with him.
ECF No. 759 at 10-12 (testimony of Dru Akagi).

3

At trial, Brandon Fukuda testified that Hahn directed him to go to the civil
deposition with Nguyen on June 19, 2013, to conduct surveillance. During that
“surveillance,” Nguyen coaxed Florence for information about Gerard’s vehicle.
That information was relayed back to Hahn, who ran records checks on Gerard’s
3

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Then, the day after the alleged mailbox theft, Hahn immediately began
directing the “investigation” that would attempt to legitimize the frame job. He
arrived at HPD and reviewed the surveillance footage with Nguyen, knowing that
Nguyen had retrieved it that morning from the Kealohas’ residence. He also called
another subordinate, CIU technician Niall Silva, and instructed him to come to HPD
headquarters to help process the surveillance video. In front of Nguyen, Hahn
directed Silva to falsely claim Silva had retrieved the video that morning instead of
Nguyen, in order to create the appearance that the surveillance video had been
properly handled by a technician. Hahn also instructed Silva to prepare a false report
in that regard and violate HPD protocols by not logging the original hard drive into
evidence. Silva did as directed by his superior, placed the original hard drive in his
desk, and created CDs that would serve as the only pieces of “evidence” to be used
by Hahn and his co-conspirators to prosecute Gerard. The hard drive, of course, was
recorded over and deleted by the co-conspirators before anyone could view what
really transpired.
Hahn’s corrupt leadership additionally oversaw other flagrant abuses of his
authority as an HPD Lieutenant. Hahn initiated database searches of Gerard’s

vehicle and others associated with him. Indeed, when Hahn met with Akagi about
the mailbox case around June 25, 2013, Hahn pieced together the information and
notified Akagi that Gerard’s neighbor had a white vehicle that matched the vehicle
in the surveillance video. See ECF No. 759 at 12 (Akagi testimony). This led Akagi
to investigate Gerard.
4

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person, residence, and vehicle, as well as 24-hour surveillance of the Kealohas and
Gerard by approximately 20-30 HPD officers, including 10-15 CIU officers, until
the day of Gerard’s arrest. 4 Once the sham investigation and arrest of Gerard was
executed by Hahn and his co-conspirators, they perpetuated their criminal activities
over the course of several years, first to ensure Gerard was successfully prosecuted,
and, second, when the prosecution did not go as planned, to cover up their crimes.
They did this by coordinating false storylines that they purposely fed to the Postal
Inspector, a federal jury in the first mailbox trial, the FBI, and a federal grand jury.5
II
THE ADVISORY GUIDELINES
1.

Base Offense Level

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

4

See
ECF No. 827 at 38-45 (testimony of Daniel Sellers) (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.”).
5

Hahn also directed others during the cover up phase. Sellers testified that
Hahn directed him to conduct surveillance at the Puana v. Kealoha civil trial in early
2015, for several hours to “basically make sure that nothing went wrong.” ECF No.
827 at 9-10 (testimony of Daniel Sellers).
5

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2.

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Specific Offense Characteristics
First,

pursuant to § 2J1.2(b)(2), three levels are added because the offense resulted in
substantial interference with the administration of justice. According to the
Guidelines, “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.
Second, § 2J1.2(b)(3) provides for an additional two-level enhancement if any
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). While only one is needed, at least two, if not all three, prongs
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. 6 Under the second prong,

6

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
6

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the mailbox itself and the surveillance video independently qualify as “essential or
especially probative” records or objects that were altered (the mailbox) and
destroyed (the surveillance video). 7 Finally, under the first prong, while the
Guidelines do not define a “substantial number,” it arguably fits here: (1) K. Kealoha
altered the initial police report to inflate the value of the mailbox; (2) the coconspirators altered the mailbox; (3) the co-conspirators falsified multiple burglary
reports; and (4) the co-conspirators destroyed critical surveillance video.
3.

Chapter Three Adjustments

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) (quotation omitted) [full cite added], and the ‘extensive
planning’ undertaken to intimidate an opposing lawyer and his family in Bakhtiari,
714 F.3d at 1062.”).
7

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 an enhancement under § 2J1.2(b)(3)(B) 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.’”).
7

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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.
a.

Aggravating Role § 3B1.1(b)
the

United States recommends a three-level upward departure under USSG § 3B1.1(b)
for Hahn based on his aggravating role in the instant offenses. Section 3B1.1(b)
provides that an aggravating role enhancement is applicable when the defendant was
a manager or supervisor under two separate circumstances: (1) the criminal activity
involved five or more participants or (2) the criminal activity was otherwise
extensive.

8

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First,
while the criminal responsibility of an individual may be important for calculating
the number of “participants” in the first prong of the enhancement, the same is not
the case for the second prong of the enhancement – the “otherwise extensive” prong.
See USSG § 3B1.1, Application Note 3 (“In assessing whether an organization is
‘otherwise extensive,’ all persons involved during the course of the entire offense
are to be considered. Thus, a fraud that involved only three participants but used the
unknowing services of many outsiders could be considered extensive.”); see also
United States v. Leung, 35 F.3d 1402, 1407 (9th Cir. 1994) (“Thus, as expressed by
application note 3 to USSG § 3B1.1, persons involved in the offense other than
criminally responsible participants may be considered in determining whether the
criminal activity was otherwise extensive.”); United States v. Rose, 20 F.3d 367, 374
(9th Cir. 1994) (“However, the second prong’s ‘otherwise extensive’ subprong
under Section 3B1.1(a) obviates further inquiry into the number of ‘participants.’”);
United States v. Abolahrar, 233 Fed. App’x 737, 739 (9th Cir. 2007) (unpublished)
(“We conclude that under our precedent and the plain language of the Guidelines,
the district court did not clearly err in considering ‘unwitting’ participants in
determining whether or not the scheme was ‘otherwise extensive.’”) (citing
Leung, 35 F.3d at 1406-07).
The Ninth Circuit has held, however, that under § 3B1.1, a defendant must
have been the organizer, leader, manager, or supervisor of at least “one or more
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participants.” United States v. Doe, 778 F.3d 814, 822-23 (9th Cir. 2015) (citations
omitted). If, in conjunction with the presence of one or more participants, the activity
is otherwise extensive, that is enough to support an enhancement under §§ 3B1.1(a)
or (b). See, e.g., Leung, 35 F.3d 1407 (affirming enhancement under § 3B1.1(a) for
a leader who had three subordinate participants where conspiracy was otherwise
extensive because it utilized unknowing services of many outsiders in an
international drug trafficking scheme, and noting that “nothing in the text
of 3B1.1(a) or the application notes expressly limits the relevant inquiry to the
number of persons involved in the criminal activity . . . the phrase ‘otherwise
extensive’ is not susceptible to such a narrow interpretation”).
There is no question that Hahn’s conduct meets both prongs of § 3B1.1(b) –
the organization involved at least five participants and was “otherwise extensive.”
At a minimum, the organization consisted of six criminally responsible actors –
Katherine Kealoha, Louis Kealoha, Hahn, Nguyen, Silva, and Sellers. All six
participants held high public positions in Honolulu and used those positions for
criminal activities instead of for the betterment and protection of society. Hahn,
Katherine Kealoha, Louis Kealoha, Nguyen, and Silva orchestrated the framing and
prosecution of an innocent man. To do so – and to ensure that the prosecution was
supported by a façade of legitimacy – they used all of the resources available to
them, particularly the “secret police” (CIU). Hahn, as the Lieutenant of CIU, was
responsible for assigning the day-to-day activities of CIU. In that role, he directed
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others, including Nguyen, Silva, and Sellers, to carry out the frame job through
various tasks. Specifically, these tasks included directing Nguyen and Fukuda to
conduct surveillance at the civil deposition; directing Nguyen to manipulate
Florence for information regarding Gerard’s vehicle; preparing false police reports;
directing the mishandling of key surveillance footage; running law enforcement
database searches of Puana; and enlisting 20-30 HPD officers (including 10-15 of
his own CIU officers) to conduct 24-hour surveillance of Puana and the Kealohas.
And, the scheme did not end there. For years afterwards, Hahn and the other
participants conspired to maintain their false storyline during interviews by the
Postal Inspector, federal trial testimony, interviews by the FBI, and grand jury
testimony. Additionally, Sellers testified that in early 2015, Hahn directed him to
maintain surveillance for hours at the Puana v. Kealoha civil trial to “basically make
sure that nothing went wrong.” ECF No. 827 (testimony of Daniel Sellers) at 9-10.
In all, this undoubtedly was an elaborate and extensive scheme to frame, arrest, and
prosecute an innocent man. This scheme spanned several years and used the might
of an entire elite section of a police force and the backing of a supervisory
prosecutor. As a part of the scheme, Hahn supervised and managed at least one other
criminally involved person.
Second, Hahn played a very active role in the execution of the scheme. His
role, compared to Louis Kealoha’s – for whom the United States has recommended
a two-level role enhancement – or others who made false statements, was deliberate
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and calculated to ensure the success of the Kealohas’ objectives. To be sure, Hahn
was charged with and convicted of the false testimony and statements by his coconspirators under Pinkerton. Further, although Louis Kealoha was the Chief of
HPD, Hahn’s role as the Lieutenant of CIU was hands-on and vital in directing
others. As detailed above and at trial, without Hahn’s direction, the frame job would
not have been cloaked with the necessary measure of legitimacy. Hahn used the
resources available to him to direct what would appear to be a legitimate HPD
investigation and arrest. This was something neither Louis Kealoha nor Katherine
Kealoha could do. Hahn’s role was proved at trial not only through Silva’s
testimony, but also through the testimony of Akagi, Sellers, Fukuda, and John
McCarthy, among other evidence.
Thus, even though the Kealohas have aggravating roles, those facts do not
diminish Hahn’s role as a manager and supervisor in the conspiracy. See USSG
§ 3B1.1, Application Note 4 (“There can, of course, be more than one person who
qualifies as a leader or organizer of a criminal association or conspiracy.”); United
States v. Garcia, 497 F.3d 964, 970 (9th Cir. 2007) (“An enhancement under §§
3B1.1(a) or (b) does not require control over all of the five or more participants.”)
(internal citation omitted); United States v. Koenig, 952 F.2d 267, 274 (9th Cir.
1991) (three-level increase under § 3B1.1 for two defendants not clearly erroneous
in prosecution for conspiracy to produce counterfeit ATM cards where one
defendant recruited another and supervised the manufacture of fraudulent cards, and
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the other defendant took lead in analyzing the group’s most efficient use of
manpower and directing the group); United States v. Savoie, 985 F.2d 612, 616 (1st
Cir. 1993) (no clear error in imposing three-level upward adjustment on ground
defendant was manager or supervisor, even though another person was commanderin-chief of the enterprise, where defendant was a prime mover in pervasive pattern
of municipal corruption lasting for several years, gave orders, participated in setting
policy, made decisions, and shared in reward).
Third, although Hahn may not have benefitted monetarily from the conspiracy
like the Kealohas, the proper consideration regarding role should turn, in part, on
Hahn’s “claimed right to a larger share of the fruits of the crime,” not strictly money.
USSG § 3B1.1, Application Note 4 (emphasis added); see also United States v.
Bernaugh, 969 F.2d 858, 863 (10th Cir. 1992) (“The Guidelines do not require that
each of the factors be satisfied for [an enhancement under § 3B1.1] to apply”);
United States v. Russell, 990 F.2d 1265, *4 (9th Cir. 1993) (unpublished) (holding
there is no requirement that each factor listed in § 3B1.1 needs to be present to find
aggravating role and that district court did not clearly err in according more weight
to defendant’s actions than to the possibility that others may have profited to a
greater extent from the illegal activity). In this case, money was not the only fruit of
the crime. Power, promotion, and prestige – both professionally and personally –
were also equally important fruits and objects of the conspiracy. In that regard, Hahn
fared well: he remained in the good graces of the Chief of HPD, who gave him the
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coveted position of a Lieutenant in an elite police unit (instead of the normal beat as
a street cop), and he remained in the good graces of a supervisory prosecutor, with
whom he was in business.
For all of the above reasons and those set forth in the United States’
Sentencing Statement, the Court should impose the three-level upward adjustment
for aggravating role under § 3B1.1(b).
b.

Abuse of Position of Trust - § 3B1.3

The Court should impose a two-level abuse of position of trust enhancement
under § 3B1.3.

. “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).
For example, in United States v. Foreman, 926 F.2d 792 (9th Cir. 1990), the
Ninth Circuit affirmed the 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
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.
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Similarly, but much more seriously, Hahn and his co-conspirators abused their
positions within law enforcement to ensure the successful investigation and
prosecution of Gerard. This involved a multi-faceted and calculated approach, such
as creating false burglary reports, generating database searches of Puana, conducting
24-hour surveillance of Puana, altering a mailbox, destroying surveillance footage,
falsifying evidence logs, falsely testifying at a federal criminal trial, and providing
false statements to law enforcement. All of the above acts were conducted by Hahn
and his co-conspirators in their official capacity has HPD officers and they plainly
demonstrate Hahn’s abuse of his position to facilitate the framing of an innocent
man.
4.

Chapter 5 Departures

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

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variance, to account for aggravating circumstances that are not adequately taken into
account by the Guidelines.
First, the Guidelines do not adequately take into account the fact that Hahn’s
crimes were committed under color of law. Recognizing the injustice inherent in
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 gap.
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.”).8

8

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).
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The most straightforward example of misuse of power is what happened here:
the framing of an innocent man by the police. See, e.g., United States v. Reese, 2
F.3d 870, 886 (9th Cir. 1993) (“This case involves illegal conduct by law
enforcement officers during the detention and arrest of criminal suspects, conduct
that unquestionably took place under color of law.”) (emphasis added). The coconspirators targeted Gerard, cloaked with authority as police officers: they created
false police reports identifying Gerard as a criminal suspect; they accessed
confidential law enforcement databases to glean information about Gerard; they
accessed the HPD-owned surveillance device at the Kealohas’ house, and then
buried—before destroying—the video; they ordered prolonged and intrusive
surveillance of Gerard; they falsely identified Gerard in order to arrest him; and,
finally, once the federal case against Gerard was underway, they flashed their
proverbial badges to ensure a successful prosecution In short, what happened here
could not have happened absent the positions of state-sanctioned 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.

Additionally, we supplement those arguments with the Declaration of Susan Ballard,
Chief of HPD, see ECF No. 969. Chief Ballard’s declaration sets forth in detail how
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the vast amount of resources devoted to surveilling Gerard resulted in a significant
disruption of the function of HPD.
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.
In addition, with regard to the 20-30 HPD officers who conducted 24-hour
surveillance of Gerard for approximately one week, Chief Ballard stated that “during
[her] thirty-four years with the Department, [she] [has] never seen or heard of
another non-violent theft offense, 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
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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 district 9 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.” Id. “The commitment of such
resources for a seemingly minor offense was impossible to justify, not just within
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
under § 5K2.0, or an equivalent variance under 18 U.S.C. § 3553.
//
//

9

The alleged offense took place in District 7, not District 6.
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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.
1.

The Nature and Circumstances of the Offense

A sworn police officer for almost 20 years, Defendant Derek Wayne Hahn
violated his oath of office by participating in a conspiracy that spanned six years to
frame and prosecute an innocent man, and then to cover up that frame job. During
the period of the conspiracy, Hahn enjoyed leadership positions at HPD – first as
Lieutenant and then as Acting Captain. He abused the power of those positions for
the greed and benefit of himself and his co-conspirators, and at the grave detriment
of the Puana family, the Honolulu Police Department, and the community of
Honolulu as a whole. To this day, Hahn has neither accepted responsibility nor
shown any remorse for the consequences of his far-reaching actions.
//
//
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2.

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History and Characteristics of the Defendant

Taken together, Hahn’s history and characteristics demonstrate that his crimes
were not borne out of personal adversity or financial desperation, but instead out of
personal loyalty, avarice, and ego.
3.

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. The public’s faith in the criminal justice system critically relies on the
knowledge that everyone plays by the rules. While many police departments and
officers make concerted efforts to operate within the rules, police corruption persists.
That corruption existed, and converged, at the highest levels of the criminal
justice system in this case – the chief of police (Louis Kealoha), a specialized “secret
police” unit (Derek Hahn and Bobby Nguyen), and a high-ranking deputy prosecutor
(Katherine Kealoha). Derek Hahn’s criminal conduct not only damaged the public’s
trust in the criminal justice system in Honolulu, but also the integrity, fairness, and
respect for the honest and hardworking members of the Honolulu Police Department.
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See, e.g., 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”).
4.

The Need to Afford Adequate Deterrence

A significant sentence is necessary to deter law enforcement officers from
engaging in criminal activity like that committed by Derek Hahn. 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 this type of
serious and difficult-to-detect criminal conduct.
“[D]eterrence occurs where a potential offender will commit a crime only if
the benefits exceed the expected sanction.” United States v. Harder, 144 F. Supp.3d
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1233, 1240 and n.5 (D. Or. 2015) (citing Peter J. Henning, Is Deterrence Relevant
in Sentencing White-Collar Defendants?, 61 Wayne L. Rev. 27, 40 (2015)). “The
greater the perceived certainty, severity, and swiftness of punishment, the lower the
crime rate will be.” Harder, 144 F. Supp.3d at 1240 and n.6 (quotation marks and
citation omitted). “It is also very difficult to predict deterrence because different
thought processes are at play in motivating crime.” Id.
When considering deterrence – both general and specific – the Court should
consider whether a law enforcement officer calculates the risk of committing the
crime against the potential sentence he faces as a “white-collar” criminal. A sentence
for conduct as egregious as that committed by Derek Hahn, who held positions as
the Lieutenant and Acting Captain of an elite police unit, must provide enough
incentive for others such that they think twice before engaging in similar conduct.
The message of a lengthy prison sentence and meaningful period of incarceration in
a federal penitentiary would send to a would-be-corrupt-officer that they stand to
lose not only their liberty, but a great deal of their livelihood.
5.

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
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
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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 recommendation in this case properly balances
the history, conduct, and role of Derek Hahn, and does not result in unwarranted
sentencing disparities.10 Derek Hahn will likely move the Court to depart downward,
by highlighting his stature in the
community, his nearly two decades of police service, and all of his good works to

10

The United States is cognizant that it is also recommending 87 months’
custody for Louis Kealoha, who was the Chief of HPD. However, Louis Kealoha
opted to plead guilty to and accept responsibility for these and other charges. See
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc) (coconspirators “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); 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) (“By comparing the
sentences of defendants who helped the Government to those defendants who did
not . . . is comparing apples and oranges.”).
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show that his behavior was simply out of the norm and that he is otherwise a lawabiding individual. However, these are typical arguments of white-collar criminals.
The Court should not be persuaded that such arguments, when counterbalanced
against all of the aggravating factors in this case, warrant a lesser sentence.
It is important for the Court to weigh these arguments made by white-collar
criminals, but it is equally important to put them in perspective and measure these
arguments against the arguments concerning the extent of the crimes they have
committed, the impact on the victims who suffered from Hahn and his coconspirators’ abuse of power and greed, and Hahn’s personal motivations for
committing such crimes. Such an analysis in this case should lead the Court to
conclude that a sentence of 87 months for Derek Hahn is sufficient but not greater
than necessary, and will avoid any of unwarranted disparities.
IV
SENTENCING RECOMMENDATIONS
1.

Custodial Term

Based on the calculated guideline range and a review of the § 3553(a) factors,
the United States recommends a total sentence of 87 months’ custody for Hahn (60
months’ custody for Count 1, to run concurrent with 87 months’ custody for each of
the remaining counts of conviction).
//
//
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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”).
3.

Fine

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). The Guideline
range for a fine for an adjusted offense level 28 is $25,000 to $250,000. See USSG
§ 5E1.2. Based on the factors outlined in § 5E1.2(d), the United States recommends
a fine of $25,000.11 Hahn’s crimes resulted in a “significant loss of resources” to the
Honolulu Police Department. Ballard Decl. ¶ 10. Additionally, Hahn’s obstructive
conduct resulted in a lengthy and costly investigation.

That same
profile makes him capable of paying the $25,000 fine.

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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
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).
Derek Hahn has the burden to prove 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” that could result in reversal or a new trial. And,
Hahn 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 Hahn could satisfy the second prong of the test, the imposition
of a substantial prison sentence provides a powerful incentive to flee for a person
who has not spent one day in jail and has been a police officer for two decades. This
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presents a serious flight risk. Hahn cannot show otherwise by clear and convincing
evidence. Hahn should be remanded after sentencing.
VI
CONCLUSION
Derek Hahn abused his police powers to frame an innocent man and obstruct
the subsequent investigation into his criminal activities over the course of several
years. 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/ Janaki S. Gandhi
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. 17-00582-3 JMS-WRP
UNITED STATES OF AMERICA,
CERTIFICATE OF SERVICE
Plaintiff,
v.
DEREK WAYNE HAHN (3),
Defendant.

IT IS HEREBY CERTIFIED that:
I, Janaki S. Gandhi, 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/ Janaki S. Gandhi
JANAKI S. GANDHI
Special Attorney to the Attorney General

29