Kealoha buyout plea deal explained

Yahoo

04-03-2025

Attorney Alexander Silvert, author of 'The Mailbox Conspiracy,' joins producer/host Coralie Chun Matayoshi to discuss charges in the original and superseding indictments, how to prove a conspiracy, evidence of the charges, elements of the plea agreements, and why each side was willing to strike plea deals and end the Kealoha conspiracy saga.
Q. It's been 3 years since former Corporation Council Donna Leong, Police Commission Chair Max Sword and City Managing Director Roy Amemiya were indicted for Conspiracy to Defraud the United States in connection with police chief Louis Kealoha's $250,000 severance payout. What were the three defendants charged with in the original indictment on December 16, 2021?
The defendants were charged with Conspiracy under 18 U.S.C. Section 371, which is a felony because the purpose of the conspiracy was to knowingly and without authority convert $5,000 or more from a program receiving federal funding [18 U.S.C. Section 666(a)(1)(A)] or obtain funds under false pretenses [18 U.S.C. 1343], both of which are felonies, and conceal the source of the funds from the Honolulu City Council and public. Felony conspiracy is punishable by up to 5 years in prison and a fine up to $250,000.
Q. What is a conspiracy?
A conspiracy is an agreement between two or more persons to commit a crime at some time in the future. Conspiracy is a separate offense than committing the crime itself. For example, one who conspires with another to commit Burglary and in fact commits the burglary can be charged with both conspiracy to commit burglary and burglary. The law seeks to punish conspiracy as a substantive crime separate from the intended crime because when two or more persons agree to commit a crime, the potential for criminal activity increases, and as a result, the danger to the public increases. Therefore, the very act of an agreement with criminal intent, along with an overt at is considered sufficiently dangerous to warrant charging conspiracy as an offense separate from the intended crime. It is not necessary to show actual loss by government as a result of defendant's actions.
Q. What kind of evidence did the federal prosecutor have to prove the charges?
The three defendants allegedly manipulated the Honolulu Police Department (HPD) to pay for part of Chief Kealoha's settlement with funds that were supposed to be used for vacant funded positions. They then allegedly made 'materially false and misleading representations and omissions' to the Honolulu City Council to reallocate city funds to cover the Kealoha payment.
They allegedly persuaded HPD to tell the City Council that their request for additional fourth-quarter funds was because of a 'salary shortfall.' When HPD refused to pay for the settlement out of their budget, Leong allegedly told HPD that City Council approval could be circumvented by 'falsely claiming HPD had used the money to hire new employees,' then request additional money from the Department of Budget and Fiscal Services (DFS) to cover the shortfall. DFS could then fill the alleged shortfall without City Council approval. The City Council would only have to be 'notified' of the monetary transfer by DFS. Funds would also be split into three parts to fall below the $100,00 level that would require City Council approval.
When the City Council asked Sword whether the payment was going to be presented to the full Council for a vote Sword allegedly replied that the settlement 'was primarily based on Kealoha's employment and retirement concerns and did not solely or primarily concern the use of federal funds.' HPD leadership continued to push back saying they could not afford the payment without slashing services and asked why they needed to make payment to Kealoha. 'Oh, the reason it's very simple,' Sword allegedly said, according to the indictment. 'So you don't have to go to the seven bananas, I mean nine bananas up at the Council.'
The indictment indicates that Amemiya was not involved in the decision regarding Chief Kealoha's severance but allegedly told acting Chief Cary Okimoto that he was 'burning bridges' by objecting to pay the settlement out of HPD's budget and not to raise the topic of the payment at the upcoming Council meeting.
Q. A superseding indictment filed on March 17, 2022, contained some additional charges. What were they?
Former Corporation Council Donna Leong was charged with 5 counts of making materially false and fictitious and fraudulent statements to the FBI regarding her secretly taped conversations with the Acting HPD Chief concerning the Kealoha's payout agreement in violation of U.S.C. 1001.
Q. All three defendants initially pled not guilty, and several trial dates were set before a plea agreement was worked out to avoid trial and draw the case to a close. What did the defendants agree to?
Leong and Sword will plead guilty to misdemeanor conspiracy to deprive the residents of Honolulu of their rights, and each pay a fine of $100,000 and serve one year of supervised release. Charges against Amemiya will be reduced to same deprivation of rights misdemeanor and he will enter into a deferred prosecution agreement that requires two years of supervised release, community service, and a $50,000 fine. Charges against him will be dismissed as long as he is not convicted of a crime and abides by all the terms of his supervised release.
The total the three defendants will pay is $250,000. The same amount lost to the taxpayers by the payout to Chief Kealoha to retire.
All three are due in federal court on March 4 for a waiver of indictment, arraignment and plea, and Leong and Sword will also be sentenced that day.
Q. Why do you think both sides were willing to enter into a plea deal and why did it benefit both parties?
This was a case where it appeared the verdict could have gone to either party, which is unusual in a federal criminal trial where the prosecution usually has built a very solid case. Each defendant had a viable defense: Sword could have argued that he was only a civilian following the legal advice of the chief civil attorney for the City and County: Leong. Amemiya could have argued that all he did was follow the direction of the mayor by getting Kealoha to retire but had no idea as to how the $250,000 payment was going to be made. Leong could have argued that she was only following the advice given to her by the chief of the Department of Budget and Financial Services who had told her this is how the City and County had done this kind of thing before. And, if Sword and Amemiya were found not guilty, then there was no 'conspiracy' no matter what the jury believed about Leong's intent because a conspiracy requires an agreement between two or more people.
Given these defenses and the uncertainty of gaining convictions against all three defendants, the government was willing to negotiate. Entering into the plea agreement where all three of the three defendants admitted wrongdoing, with two being convicted of lessor charges was the compromise that worked for both parties. Moreover, the agreement assures that the three defendants will pay back the $250,000 that was given to Kealoha through the wrongful actions of the defendants.
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