Three former city officials accused of conspiring to defraud the government by structuring a $250,000 retirement settlement for former Honolulu Police Chief Louis Kealoha will face a jury trial in October after their attempt to have a federal judge decide the case was unsuccessful.
Roy Amemiya, former Corporation Counsel Donna Leong and former Honolulu Police Commission Chair Max Sword are accused of conspiring to defraud the government by setting up a payment to former Honolulu Police Chief Louis Kealoha for $250,000 to voluntarily leave the
Honolulu Police Department in January 2017.
On April 15 the trio’s attorneys filed motions asking that a judge decide their fate rather than a jury.
The right to a jury trial may be waived only if the waiver is in writing; the government consents; the court accepts the waiver; and the waiver is made voluntarily, knowingly and intelligently, according to the Federal Rules of Criminal Procedure.
Assistant U.S. Attorney Colin M. McDonald, in the government’s opposition, cited the Singer v. United States assertion that “trial by jury has been established by the Constitution as the normal and preferable mode of disposing of
issues of fact in criminal cases.”
“The United States does not consent to a bench trial in this prosecution,” wrote McDonald. “As with every case, the United States expects the defendants will receive an impartial trial by jury, which is their constitutional guarantee.”
Amemiya’s attorney, Lyle S. Hosoda; Leong’s attorney, Lynn Panagakos; and Sword’s lawyer, William C. McCorriston, did not immediately reply to a Honolulu Star-Advertiser request for comment. Kelly Thornton, director of media relations for the U.S. Attorney’s Office of the Southern District of California, which is handling the prosecution, did not immediately respond to a Star-Advertiser request for comment.
On Monday, Panagakos wrote U.S. District Judge Leslie E. Kobayashi asking the judge to unseal documents in a 2019 civil case Amemiya filed to get access to documents and correspondence from his time at the city. Panagakos wants federal prosecutors to turn over the evidence they obtained about the Kealoha payment after a search of city computer servers.
From early April through May 3, 2019, the city paid San Francisco law firm Farella Braun &Martelto to conduct an independent internal investigation of the Kealoha settlement, which included a review of evidence that the government had seized, Panagakos wrote.
She cited a declaration by a deputy corporation counsel, Robert M. Kohn, who
detailed the internal city process that found the Kealoha settlement legal and consistent with similar separation agreements executed by the city.
“Farella concluded, after its month-long investigation and limited review of the redacted crime-fraud order, that Leong and COR followed long-established procedures for City severance agreements in connection with the Kealoha separation, and that communications by the City’s attorneys were not made in furtherance of any criminal activity,” said Kohn.
The evidence includes three declarations — one from then-Farella attorney Jessica K. Nall and two from senior deputy corporation counsels Duane W.H. Pang and Ernest H. Nomura — as well as “multiple memoranda, privileged communications, non-Kealoha separation agreements, case law, HPC minutes, and other privileged and protected documents on which the motion for reconsideration was based. In other words: the City’s primary evidence in support of its contention that COR’s advice was not used in furtherance of a crime.”
The government has maintained the information acquired is privileged.
“The prosecutors and case agents personally reviewed the Farella report, declarations and exhibits. By doing so, the prosecution team gained actual, personal knowledge of the existence of a substantial body of evidence and legal authority which undermines its case,” said Panagakos.
Amemiya, Leong and Sword turned themselves in to the FBI on Jan. 12 and entered pleas of not guilty. The trial for Amemiya, Sword and Leong was set for June 13, but both sides agreed to continue the trial to sometime in October. There is a status conference on the case scheduled for Thursday.
On May 5 the chief of staff to former Honolulu Mayor Kirk Caldwell testified as a witness before a federal grand jury, a month after receiving a subpoena as part of an ongoing public corruption investigation by the U.S. Department of Justice.
