A lawyer for former Honolulu managing director Roy Amemiya is asking a federal judge to dismiss the conspiracy charge against his client, according to a motion filed with the court.

Amemiya was indicted alongside Honolulu’s former top attorney Donna Leong and former police commission chairman Max Sword.

The defendants are accused of participating in a conspiracy to misappropriate government funds to issue a $250,000 severance payment to then-police chief Louis Kealoha, who was under investigation at the time for corruption. All three defendants have pleaded not guilty.

HPD Chief Kealoha Acting Mayor Roy Amemiya2. 20 dec 2016
Former Honolulu managing director Roy Amemiya, right, was indicted, along with former police commissioner Max Sword, left, and former city attorney Donna Leong. Cory Lum/Civil Beat/2016

Attorney Lyle Hosoda wrote in the motion filed on Monday that federal prosecutors failed to meet the legal requirements to indict Amemiya under the federal conspiracy statute.

“There is nothing criminal about discussing and agreeing to pay severance to a soon-to-be former employee,” Hosoda said in the filing.

Hosoda said the indictment wrongfully accuses Amemiya of a federal conspiracy even though, in Hosoda’s view, no offense was committed against the United States. The indictment accused the defendants of conspiring to commit theft from a program that received federal funds, but Hosoda said in that case, the victim would be the city, not the federal government.

“There are absolutely no allegations in the Indictment that Amemiya conspired to commit an offense against the United States or to defraud the United States or any agency thereof,” Hosoda wrote.

The indictment said the defendants collaborated to circumvent the Honolulu City Council’s review of the retirement payment. But Hosoda argued the indictment failed to state what exactly Amemiya did wrong.

“There are no allegations that any of the defendants received any money or other personal benefit from the alleged conspiracy,” Hosoda wrote. “Rather, the allegations describe an agreement to fashion a means through which a City employee could receive a severance payment from funds already allocated to HPD for salaries.”

According to the indictment, Amemiya allegedly told the interim police chief he was “burning bridges” by publicly objecting to Kealoha’s retirement payment and a few months later, allegedly told the interim chief he “wanted to make sure” that the Kealoha payment “did not become a story.” Hosoda argued these actions were not part of any offense against the United States.

In addition, Hosoda said the indictment failed to inform Amemiya about the nature of the government’s accusation against him – a violation of his sixth amendment rights, Hosoda wrote.

“The agreement allegation must contain a level of particularity that would permit Amemiya to know what agreement the Government is referring to,” Hosoda wrote.

In the indictment, the government described how the $250,000 payment to Kealoha was coded by the city into smaller chunks – $99,999, $99,999 and $50,002 – that were then combined into one check. Transfers of $100,000 and up require city council approval, according to city law.

But the indictment didn’t allege that the defendants made the decision to break up the payment, Hosoda argued.

“There is no law here prohibiting severance payments, only laws about when City Council approval of expenditures is needed,” Hosoda said. “The Indictment needs to allege, with particulars, that Amemiya entered into an agreement to make a payout to Chief Kealoha and violate(d) the law to do it.”

A trial for the three defendants was originally set for March 14 before Judge Leslie Kobayashi, but court records on Tuesday show it was pushed to June 13.

Attorneys for Leong and Sword also have mounted defenses of their clients.

Leong’s lawyer Lynn Panagakos is seeking to depose former city budget director Nelson Koyanagi, who she says is a “critical witness” who can demonstrate the payment to Kealoha was legal. Testimony of Koyanagi, who is suffering from unspecified health issues, needs to be taken soon because he may not be “available” by the trial date, Panagakos said in court records.

And Sword’s attorney, Bill McCorriston, has taken his defense of his client to the media. In a Honolulu Star-Advertiser column, he wrote that his client was just following the guidance of the city attorney, Leong, and the Department of Budget and Fiscal Services and that ultimately, the Honolulu Police Commission approved the payout.

“The suggestion that Sword or other members of the Police Commission should ignore the advice of the city’s legal and budget departments, which are tasked to give advice to the Police Commission, is utterly ludicrous,” McCorriston said.

“Though some may disagree with the action of the commission, we reiterate that we will vigorously defend Mr. Sword from this unjust criminal charge.”

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