An attorney for former corporation counsel Donna Leong, meanwhile, is trying to get the federal prosecutor kicked off the case.

Attorneys for three indicted former Honolulu officials filed a flurry of legal motions on Tuesday in an effort to dismiss the charges against their clients. 

The case centers on a $250,000 retirement deal for former police chief Louis Kealoha allegedly orchestrated in 2016 by officials at the time — corporation counsel Donna Leong, managing director Roy Amemiya and police commission chair Max Sword. 

Separate motions submitted by the defendants’ attorneys on Wednesday aim to get the entire case dismissed, on various grounds. Amemiya’s attorney argues what his client is accused of amounts to constitutionally protected speech. Sword’s lawyer says the case should be thrown out because Sword never personally benefited from the alleged conspiracy and investigators repeatedly assured him he was not a target of the investigation. 

Honolulu’s former top attorney Donna Leong, former Honolulu Police Commission chair Max Sword and former managing director Roy Amemiya are fighting charges that they conspired to improperly issue a severance payment to a now-disgraced police chief. (File photos/Civil Beat)

Tommy Otake, an attorney for Leong, is taking aim at the prosecution. 

He is calling for the dismissal of the case because allegedly privileged information shared with the grand jury represents “prosecutorial misconduct.” He asked the court to unseal the grand jury proceedings on the suspicion that the jurors who returned the indictment were “misled.” 

And Otake is trying to get San Diego prosecutor Michael Wheat kicked off the case after Wheat’s office unsuccessfully tried to do the same to Otake. 

In a legal filing submitted to U.S. District Court on Tuesday, Otake argues that Wheat is a material witness in the case and should therefore be disqualified from the prosecution. Wheat is the mainland prosecutor who has been investigating corruption in Honolulu since 2015.  

The police commission voted to cut Kealoha loose with pay after he received a target letter from Wheat’s office informing him that he was under federal investigation in 2016.

The commission, advised by Leong, determined a severance payment was a quicker and easier way to remove Kealoha than putting him on administrative trial, Otake’s filings state. The evidence of Kealoha’s federal crimes wasn’t yet publicly known, so there may not have been enough justification to fire him outright. Waiting for a jury verdict would’ve taken years. Kealoha wasn’t convicted until 2019. 

Federal prosecutor Michael Wheat and defense attorney Tommy Otake have made efforts to remove each other from the case. (File photos/Civil Beat)

“This case sadly begins and ends with Michael Wheat and his team of federal prosecutors thinking they know best how to manage and govern the City and County of Honolulu,” Otake’s motion to dismiss states. 

As a witness, Wheat could testify that he provided no information about his investigation to Leong, Amemiya and Sword prior to Kealoha’s indictment, according to Otake’s filing. The lack of information created an “intolerable situation,” the filing states.

“The controversy surrounding Kealoha was destroying public confidence in HPD and the morale of police officers,” the motion to disqualify Wheat states. “However, Kealoha still had over two years left before his term as the Chief of Police would expire, and there was nothing concrete that could be used to terminate him for cause without risk of costly administrative appeals and lawsuits to follow.” 

The $250,000 separation agreement allowed for a flat cost rather than “incalculable costly litigation,” the filing states. It included a clause stating that if Kealoha was convicted of a crime later on, he would have to return the money – a provision that ultimately came into effect.

Kelly Thornton, a spokesperson for the U.S. Attorney’s office in San Diego, declined to comment. 

The effort to remove Wheat comes just days after U.S. District Court Judge Leslie Kobayashi rejected a request from Wheat’s team to boot Otake from the case. Prosecutors had argued that Otake had a conflict of interest with a witness who used to be his law partner, Loretta Sheehan. 

Sheehan, a former federal prosecutor who was on the police commission at the time, was the lone “no” vote against Kealoha’s severance. But the filing notes she never raised concerns that the deal was illegal. 

The indictment against Leong, Amemiya and Sword hinges on the idea that officials needed approval from the Honolulu City Council to approve the retirement deal and that circumventing city lawmakers violated federal law. 

The defense disputes that. 

Leong and other city attorneys believed that council approval was not required for employment-related separation agreements, according to the filing. 

Before Kealoha’s retirement deal was signed, the city signed separation deals without City Council approval with Daniel Grabauskas, the former CEO of the Honolulu rail project, and Chuck Totto, the former director of the Honolulu Ethics Commission, the filing notes. 

“It does not appear that anyone, including federal authorities or members of the Council, raised any objection to the legality of the Grabauskas and Totto separation agreements and severance payments,” the filing states. 

“Ms. Leong relied on her prior experiences with the separation agreements for these two high-ranking City officials to fortify her belief that the same approach taken for Kealoha’s separation agreement was clearly legal.” 

Leong also relied on advice from the city’s then-budget director Nelson Koyanagi who confirmed that Kealoha’s severance was legal, according to the filing. Koyanagi died last year. 

The filing disputes an additional charge Leong is facing for allegedly lying to FBI agents. Otake said she made the statements to Special Attorney Todd Robinson in the presence of FBI agents who were secretly recording her. 

The meeting was arranged by Wheat, who Otake says misrepresented the purpose of the meeting, the filing states. 

“The jury will hear his name over and over again as someone intricately involved in the facts of this case, thus making Wheat’s credibility – as the lead prosecutor – a central theme of the trial if he is not disqualified,” the filing states. 

Otake’s filing also raises questions about Acting Honolulu Police Chief Cary Okimoto, who apparently believed Kealoha’s deal was illegal and started cooperating with the feds in January 2017, according to the filing. At that point, Okimoto began recording conversations with the defendants and shared them with federal authorities, court records show.

Just weeks before Okimoto’s cooperation allegedly began, Civil Beat published a story about him. It highlighted Okimoto’s ties to Kealoha and questioned Okimoto’s leadership over the police unit at the center of the criminal conspiracy for which Louis Kealoha and his wife Katherine are currently serving prison time. 

“It was only 20 days after this concerning article that Okimoto went out of his way to assist the Government in building this case against Ms. Leong, Mr. Sword, and Mr. Amemiya,” the filing states. “His motivations for doing so will be at issue in Ms. Leong’s trial.”

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