United States' Response in Opposition To Amemiya Motion To Dismiss

Case 1:21-cr-00142-LEK Document 73 Filed 03/03/22 Page 1 of 19 PageID #: 300
MERRICK B. GARLAND
Attorney General
RANDY S. GROSSMAN
United States Attorney
MICHAEL G. WHEAT, CBN 118598
JOSEPH J.M. ORABONA, CBN 223317
JANAKI G. CHOPRA, CBN 272246
COLIN M. MCDONALD, CBN 286561
ANDREW Y. CHIANG, NYBN 4765012
Special Attorneys of the United States
880 Front Street, Room 6293
San Diego, CA 92101
619-546-8437/7951/8817/9144/8756
michael.wheat@usdoj.gov
Attorneys for the United States of America
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
UNITED STATES OF AMERICA, CR No. 21-00142-LEK
Plaintiff, UNITED STATES’ RESPONSE IN

v. OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS, ECF NO. 31
ROY KEIJI AMEMIYA, JR. (3),
Defendant.
The United States of America, through its counsel, hereby files its response to
Defendant Roy Keiji Amemiya, Jr.’s motion to dismiss the indictment (“Motion”).
For the reasons discussed below, the Court should deny Amemiya’s Motion.
STATEMENT OF THE CASE
On December 16, 2021, a grand jury in the District of Hawaii returned a one-
count indictment charging defendants Amemiya, Donna Leong, and Max Sword
with conspiracy to commit federal program theft and wire fraud, in violation of 18
U.S.C. §§ 371, 666(a)(1)(A), and 1343. On January 12, 2022, the defendants were
arraigned on the indictment. On January 31, 2022, Amemiya filed the Motion. See
ECF No. 31. A hearing on the Motion is scheduled for March 24, 2022. See ECF
No. 35.
The charge in the current indictment arises from a $250,000 payout to Louis
Kealoha, the former Chief of the Honolulu Police Department (HPD). See
Indictment at ¶¶ 15-23. The charge alleges that Leong, as Corporation Counsel for
the City and County of Honolulu (“City”), Sword, as Chair of the Honolulu Police
Commission, and Amemiya, as the Managing Director for the City, engaged in an
effort to misapply City funds from HPD’s budget in order to secure Kealoha’s
payout without first obtaining the required City Council approval. Id. at ¶¶ 17, 26-
32.
Amemiya’s role in the conspiracy is alleged in the indictment at various
paragraphs, including paragraphs 33l, 33y, 33z, and 33aa. Specifically, Amemiya is
alleged to have committed several overt acts, such as threatening an HPD official
with “burning bridges” by not agreeing to the terms of Kealoha’s payout and
attempting to persuade an HPD official not to raise concerns about the payout before
the City Council in order to avoid the payout from becoming a “story.” See
Indictment at ¶¶ 33l, 33y.
2
II
LEGAL BACKGROUND
Federal Rule of Criminal Procedure 7(c)(1) states:
The indictment or information must be a plain, concise, and definite

written statement of the essential facts constituting the offense charged
and must be signed by an attorney for the government. It need not
contain a formal introduction or conclusion. A count may incorporate
by reference an allegation made in another count. A count may allege
that the means by which the defendant committed the offense are
unknown or that the defendant committed it by one or more specified
means. For each count, the indictment or information must give the
official or customary citation of the statute, rule, regulation, or other
provision of law that the defendant is alleged to have violated.
An indictment satisfies Rule 7 if it “provides ‘the substantial safeguards’ to criminal
defendants that indictments are designed to guarantee.” United States v. Cecil, 608
F.2d 1294, 1296 (9th Cir.1979) (quoting Russell v. United States, 369 U.S. 749, 763,
(1962)). Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may
bring a motion alleging the indictment “fails to ... state an offense.” The Ninth
Circuit has explained that, “An indictment will withstand a motion to dismiss if it
contains the elements of the charged offense in sufficient detail (1) to enable the
defendant to prepare his defense; (2) to ensure him that he is being prosecuted on
the basis of the facts presented to the grand jury; (3) to enable him to plead double
jeopardy; and (4) to inform the court of the alleged facts so that it can determine the
sufficiency of the charge.” United States v. Rosi, 27 F.3d 409, 414 (9th Cir.
1994) (citation omitted).
3
Arguments attacking the Government’s evidence is not a basis
to dismiss the indictment. As the Ninth Circuit stated in United States v. Buckley,
689 F.2d 893, 897 (9th Cir. 1982), “the issue in judging the sufficiency of
the indictment is whether the indictment adequately alleges the elements of the
offense and fairly informs the defendant of the charge, not whether the Government
can prove its case.”
III
ARGUMENT
A. The Indictment Satisfies Rule 7
The indictment in this case more than satisfies Rule 7. The indictment
provides a plain, concise, and definite statement of the facts constituting the offense.
To be sure, the indictment provides the federal statutes with which Amemiya is
charged and adequately contains the elements of the charged offenses—conspiracy
to commit federal program theft and wire fraud. These offenses have the following
elements:
18 U.S.C. § 371 1:
(1) there was an agreement between two or more persons to commit

at least one crime charged in the indictment;
(2) the defendant became a member of the conspiracy knowing of at
least one of its objects and intending to help accomplish it; and
(3) one of the members of the conspiracy performed at least one
overt act for the purpose of carrying out the conspiracy.
1
See United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980); 9th Cir.
Criminal Model Jury Instr. 11.1 (2022).
4
18 U.S.C. § 666(a)(1)(A) 2:
(1) the defendant was an agent of an organization – that is, the

defendant was a person authorized to act on behalf of the
organization, including an employee, partner, director, officer,
manager or representative;
(2) in a one-year period the organization received federal benefits in
excess of $10,000;
(3) the defendant stole, embezzled, knowingly converted or
intentionally misapplied property;
(4) the property stolen, embezzled, knowingly converted or
intentionally misapplied was owned by, or was in the care,
custody or control of, the organization; and
(5) the value of the property stolen, embezzled, obtained by fraud,
knowingly converted or intentionally misapplied was at least
$5,000.
18 U.S.C. § 1343 3:
(1) The defendant knowingly participated in, devised, or intended to

devise a scheme or plan to defraud, or a scheme or plan for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, or omitted facts;
(2) The statements made or facts omitted as part of the scheme were
material; that is, they had a natural tendency to influence, or were
capable of influencing, a person to part with money or property;
(3) The defendant acted with the intent to defraud; that is, the intent
to deceive and cheat; and
(4) The defendant used or caused to be used, an interstate wire
communication to carry out or attempt to carry out an essential
part of the scheme.
In addition, the indictment goes above and beyond in providing 23
introductory allegations, the manner and means of the conspiracy, and 28 overt acts.
This level of detail is not required by statute or case law but yet is available to
2
See Pattern Crim. Jury Instr. 3d Cir, 18 U.S.C. 666A (2010); Model Crim.
Jury Instr. 8th Cir. 6.18.666A (2011)
3
See 9th Cir. Crim. Model Jury Instr. 15.35 (2022).
5
Amemiya to inform him of the charges and enable him to prepare his defense. See
Fed. R. Crim. P. 7(c)(1) (“[An indictment] need not contain a formal introduction or
conclusion.”); Wong Tai v. United States, 1927, 273 U.S. 77, 80-81 (1927) (“While
it is essential to the validity of an indictment under the Federal Constitution and laws
that it shall advise the defendant of the nature and cause of the accusation in order
that he may meet it and prepare for trial, and after judgment, be able to plead the
record and judgment in bar of a further prosecution for the same offense, we find in
the present indictment no lack of compliance with this requirement. It charged the
defendant, with definiteness and certainty and reasonable particularity as to time and
place, with conspiring with a named person and others to commit certain specified
offenses in violation of the Opium Act; and further charged him, in like manner,
with doing various specified acts to effect the object of the conspiracy. It is well
settled that in an indictment for conspiring to commit an offense-in which the
conspiracy is the gist of the crime-it is not necessary to allege with technical
precision all the elements essential to the commission of the offense which is the
object of the conspiracy….” (citations omitted)); United States v. Lyman, 592 F.2d
496, 500 (9th Cir. 1978) (“Among the elements required to support
a conspiracy conviction is proof of only one overt act in furtherance of the illegal
purpose.” (emphasis added)); Rose v. United States, 149 F.2d 755, 758 (9th Cir.
1945) (“The sufficiency of an indictment must be determined on the basis of
practical rather than technical considerations. It is not the law that
6
to charge conspiracy to commit an offense, all the elements need be precisely
alleged. This court has held that: The essence of the crime of conspiracy is the
unlawful combination, and if the object of the conspiracy is the accomplishment of
some unlawful act, the means by which the unlawful act is to be accomplished need
not be set forth in the indictment. In the instant case a fraudulent conspiracy to
transfer rubber tires and tubes in violation of rationing regulations is charged, the
terms of the applicable regulations are mentioned in the indictment, and overt acts
in furtherance of the object of the conspiracy are therein set forth. These allegations
are sufficient.” (citations and quotations omitted)). Accordingly, the Court should
find that the indictment satisfies Rule 7 and deny Amemiya’s Motion.
B. Amemiya’s Arguments Should be Rejected
Amemiya’s Motion relies on three central arguments: (1) the indictment fails
to state a cognizable offense against Amemiya; (2) the indictment fails to allege that
Amemiya conspired to commit an offense against the United States because he was
not charged with a § 666(a)(1)(A) offense; and (3) the indictment fails to inform
Amemiya of the nature of the alleged criminal conspiracy. He is mistaken. The Court
should reject all three arguments.
1. The Indictment Charges a Cognizable Offense
Amemiya’s first argument is a jurisdictional one. He contends that the
indictment contains no allegation that he conspired to commit an offense against the
United States or to defraud the United States or any agency thereof because there are
7
no allegations that federal funds were used for the Kealoha payout, or that the payout
impaired, obstructed, or defeated a lawful function of the United States or an agency
thereof. Mot. at 17.
Amemiya is incorrect. Amemiya recognizes that 18 U.S.C. § 371 criminalizes
two kinds of conspiracies – a conspiracy to commit an offense against the United
States (“offense clause”) and a conspiracy to defraud the United States or any agency
thereof (“defraud clause”). Mot. at 9; see also United States v. Tuohey, 867 F.2d 534,
536 (9th Cir. 1989); United States v. Meredith, 685 F.3d 814, 825 n.2 (9th Cir.
2012) (distinguishing between the “offense” clause and “defraud” clause of § 371);
9th Cir. Criminal Model Jury Instr. 11.1 and 11.2 (2022).
In this case, Amemiya and his co-conspirators are charged under the offense
clause, with the objects of the conspiracy being violations of 18 U.S.C. §§
666(a)(1)(A) and 1343. Federal jurisdiction is met because the objects of the
conspiracy are federal crimes. See Iysheh v. Gonzales, 437 F.3d 613, 614 (7th Cir.
2006) (“The statute to which he pleaded guilty, 18 U.S.C. § 371, prohibits two
things: conspiracy to defraud the United States, and conspiracy to commit ‘any
offense’ against the United States (which means any federal offense).”); see also
United States v. Fields, 516 F.3d 923, 932 (10th Cir. 2008) (quoting Iysheh, 437 F.3d
at 614) (“First of all, we emphasize that ‘offenses against the United States’ does not
refer to a subset of offenses relating only to federal property…The quoted phrase,
familiar from countless indictments, simply “means any federal offense,” —an
8
understanding reflected in the generic use of the phrase throughout the federal
criminal code (for example, to define such general federal criminal concepts as
principals and accessories, 18 U.S.C. §§ 2, 3, and criminal conspiracies, 18 U.S.C.
§ 371). Use of the phrase clearly does not signal a restriction to crimes against federal
property.”); May v. United States, 175 F.2d 994, 1013 (D.C. Cir. 1949). (“A
conspiracy to commit an offense against the United States may involve one of many
different kinds of offenses denounced by the Federal statutes, but these offenses may
or may not constitute a defrauding of the United States.”); Radin v. United States,
189 F. 568 (2d Cir.1911) (“It has long been established that the words ‘offense
against the United States’ encompass all offenses against the laws of the United
States, not just offenses directed at the United States as target or victim.” (citation
omitted)); United States v. Garcia, 533 F. Appx. 967, 983 (11th Cir. 2013) (quoting
Iysheh, 437 F.3d at 614) (“Garcia contends that the conspiracy statute is limited to
conspiracies to commit ‘any offense against the United States,’ see 18 U.S.C. § 371,
whereas ‘the victim of [his] crime was not the United States but rather John [sic]
Jairo Giraldo Garcia.’ The Seventh Circuit has previously explained that the
statutory language ‘any offense against the United States’ refers to
‘any federal offense.’”).
Amemiya argues that there are no allegations that federal funds were used for
the Kealoha payout, and thus there is no alleged offense against the United States.
Mot. at 17. That is irrelevant. The express language of § 666 does not require any
9
connection between the embezzled or stolen funds and a federal interest or program.
See Sabri v. United States, 541 U.S. 600, 604 (2004) (holding that a federal nexus
between the crime and federal dollars was not an element of § 666); see also United
States v. Mirikitani, 380 F.3d 1223, 1225 (9th Cir. 2004) (“the Supreme Court
[in Sabri ] not only held that a federal nexus was not an element of the crime, but it
held that no federal nexus must be shown at all.”). 4 Rather, the charge merely
requires that in a one-year period the organization of which the defendants were
agents – here, the City – received federal benefits in excess of $10,000. See 18 U.S.C.
§ 666(b). That is because, as the Ninth Circuit has recognized, “Congress plainly
decided to protect federal funds by preserving the integrity of the entities that receive
the federal funds rather than requiring the tracing of federal funds to a particular
illegal transaction.” United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991). The
indictment alleges the City received federal funds in excess of $10,000 during the
conspiracy and thus satisfies this requirement. See Indictment at ¶ 4.
Amemiya also argues that there is no evidence that the payout “impaired,
obstructed, or defeated a lawful function of the United States or an agency thereof.”
Mot. 17. That is also irrelevant, as those are not elements of the charged offense, as
4
In addition, the United States is not required to prove that Amemiya knew the
City received federal funds. See United States v. Turchin, 21 F.4th 1192, 1203 (9th
Cir. 2022) (citing Torres v. Lynch, 578 U.S. 452, 468 (2016) (“[T]he existence of
the fact that confers federal jurisdiction need not be one in the mind of the actor at
the time he perpetrates the act made criminal by the federal statute.”)).
10
detailed above. Neither the offense clause conspiracy charge nor the objects of the
conspiracy include an element that the Kealoha payout impaired, obstructed, or
defeated a lawful function of the United States or any agency thereof. 5 See Turchin,
21 F.4th at 1197 n. 2.
For the bulk of his brief, Amemiya wrongly focuses on the defraud clause of
§ 371. Indeed, Amemiya spends over a third of his motion discussing two Supreme
Court cases, Tanner v. U.S., 483 U.S. 107 (1987) and Hammerschmidt v. United
States, 265 U.S. 182 (1924), to support his argument. Mot. at 9-17. But, Amemiya’s
argument, along with the two Supreme Court cases, are directed solely at the defraud
clause of § 371. See Tanner, 483 U.S. at 128-29 (“The indictment against petitioners
charged them with having conspired “to defraud the United States by impeding,
impairing, obstructing and defeating the lawful functions of the Rural Electrification
Administration in its administration and enforcement of its guaranteed loan
program.”); Hammerschmidt, 265 U.S. at 185 (“The charge was that the petitioners
willfully and unlawfully conspired to defraud the United States by impairing,
obstructing, and defeating a lawful function of its government, to wit, that of
registering for military service all male persons between the ages of 21 and 30, as
required by the Selective Service Act of May 18, 1917.”). The defraud clause
5
The defraud clause, on the other hand, does have such an element. See 9th Cir.
Criminal Model Jury Instr. 11.2 (2022).
11
analysis is irrelevant here. Amemiya and his co-conspirators are properly charged
with conspiring to commit Title 18 offenses.
2. Amemiya is Properly Charged under Section 371
Amemiya argues that because he was not charged with committing an offense
under § 666(a)(1)(A), “that section cannot be the basis to allege federal jurisdiction
over a conspiracy offense under Section 371.” Mot. at 22-23.
The United States construes Amemiya’s argument to be that he must be
charged with a substantive, or completed, § 666(a)(1)(A) offense in order to be
properly charged with the § 371 conspiracy. Amemiya cites no authority for that
proposition. Nor can he, as it is directly contrary to decades of binding caselaw. See
Ianelli v. United States, 420 U.S. 770, 777-78 (1975) (“Traditionally the law has
considered conspiracy and the completed substantive offense to be separate
crimes… Indeed, the Court has even held that the conspiracy can be punished more
harshly than the accomplishment of its purpose.” (citations omitted)); United States
v. Iribe, 564 F.3d 1155, 1161 (9th Cir. 2009) (“The crime [of conspiracy] does not
require completion of the intended underlying offense.”); United States v. Feola, 420
U.S. 671,694 (1975) (citing United States v. Bayer, 331 U.S. 532, 542 (1947)) (“The
law of conspiracy identifies the agreement to engage in a criminal venture as an
event of sufficient threat to social order to permit the imposition of criminal
sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of
whether the crime agreed upon actually is committed.”); United States v. Thompson,
12
493 F.2d 305, 310 (9th Cir. 1974) (“[T]he crime of conspiracy is complete upon the
agreement to violate the law, as implemented by one or
more overt acts (however innocent such may be), and is not at all dependent upon
the ultimate success or failure of the planned scheme.”). Amemiya’s argument
should be rejected. 6
3. The Indictment Sufficiently Informs Amemiya of the Conspiracy
Amemiya argues that the indictment fails to inform him of the charge against
him. Mot. at 23. He argues that the indictment does not allege that he entered into a
criminal conspiracy – he believes the overt acts in the indictment are not criminal in
nature and thus fail to inform him of how he violated the law. Id. at 30-31.
These claims similarly fail. As discussed above, the indictment provides a
level of detail far beyond what is required by statute and case law to inform
Amemiya about the charge against him – it outlines an introduction, the objects of
the charged conspiracy, the manner and means of the conspiracy, and 28 overt acts,
a number of them committed by Amemiya.
Whether any one particular overt act is criminal in nature is irrelevant. Courts
have held that a § 371 conviction only requires one overt act by one of the
conspirators, and it need not be criminal in nature. Braverman v. United States, 317
6
Amemiya also spends considerable time in this portion of his argument
discussing the history of 18 U.S.C. § 666 and its connection with 18 U.S.C. § 641.
The United States is unclear as to the relevance of § 641 to this case, except that it
also criminalizes embezzlement or theft from the United States or any agency
thereof. However, Amemiya is not charged with § 641.
13
U.S. 49, 53 (1942) (“The overt act, without proof of which a charge
of conspiracy cannot be submitted to the jury, may be that of only a single one of the
conspirators and need not be itself a crime.”); Lyman, 592 F.2d at 500 (“Among the
elements required to support a conspiracy conviction is proof of only one overt act
in furtherance of the illegal purpose.”); United States v. Rodriguez, 546 F.2d 302,
307 (9th Cir. 1976) (“It is obvious that a conspiracy can be furthered by overt acts,
some of which may or may not be criminal in nature.”); Heskett v. United States, 58
F.2d 897, 899 (9th Cir. 1932) (“But there is no rule of law which requires
an overt act to be an unlawful act. It may be in itself a perfectly lawful act which
becomes unlawful only when it is committed in pursuance of and to effect the object
of the conspiracy. It was not necessary to allege in what manner the overt act would
tend to effect the object of the conspiracy.” (internal quotations omitted));
Fredericks v. United States, 292 F. 856, 857 (9th Cir. 1923) (“Where more than one
overt act is charged, the prosecution need not prove all of them; but it is fundamental
that some overt act alleged must be proved.”).
Although his motion seems to hint at such an ask, Amemiya stops short of
requesting a bill of particulars. See Fed. R. Crim. P. 7(f). And for good reason. The
purpose of a bill of particulars is not for a defendant to “know all the Evidence the
United States intends to produce, but only the Theory of the government’s case.”
United States v. Giese, 597 F.2d 1170, 1181 (9th Cir. 1979 (quoting Yeargain v.
United States, 314 F.2d 881, 882 (9th Cir. 1963)). The function of a bill of particulars
14
is “to inform the defendant of the nature of the charge against him with sufficient
precision to enable him to prepare for trial, to avoid or minimize the danger of
surprise at the time of trial, and to enable him to plead his acquittal or conviction in
bar of another prosecution for the same offense when the indictment itself is too
vague, and indefinite for such purposes.” Id. at 1180 (internal quotations omitted).
The key factor in deciding whether a bill of particulars is warranted is whether
the defendant has been adequately advised of the charges. This can be done in a
variety of ways, but is most commonly accomplished by reference to the indictment
itself. United States v. Robertson, 15 F.3d 862, 873-874 (9th Cir. 1994), rev’d on
other grounds, 514 U.S. 669 (1995) (“bill of particulars was not necessary…because
the indictment apprised [defendant] of the specific charges against him, thereby
minimizing the danger of surprise at trial; aided him in preparing for trial; and
protected him against double jeopardy.”). The Court may also look beyond the
indictment in determining whether the defendant has been adequately advised of the
charges and may consider “all other disclosures made by the government.” Giese,
597 F.2d at 1180. “Full discovery will obviate the need for a bill of
particulars.” United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) (citing
Giese, 597 F.2d at 1180, and United States v. Clay, 476 F.2d 1211, 1215 (9th Cir.
1973)); accord United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984) (“The
purposes are served if the indictment itself provides sufficient details of the charges
and if the Government provides full discovery to the defense.”). “The ultimate test
15
in deciding whether a bill of particulars should be ordered is whether the information
sought is necessary, as opposed to helpful, in preparing a defense.” United States v.
Giffen, 379 F. Supp. 2d 337, 346 (S.D.N.Y. 2004).
The Ninth Circuit has explained that the following reasons generally “do not
warrant a bill of particulars”: (1) to obtain the names of any unknown co-
conspirators; (2) to determine the exact date on which the conspiracy allegedly
began; and (3) to delineate all other overt acts that comprised the charged
activity. United States v. DiCesare, 765 F.2d 890, 897 (9th Cir. 1985); see also
Giese, 597 F.2d at 1181 (holding that defendant’s request for the “‘when, where, and
how’” of every act in furtherance of the conspiracy was equivalent to a request for
complete discovery of the government’s evidence, which is not a purpose of the bill
of particulars.).
Here, as discussed, the indictment goes above and beyond in detailing the facts
and elements of the crime. Any additional questions by Amemiya regarding his
specific role in the conspiracy will be addressed by the voluminous discovery in this
case, which currently comprises of approximately 16,382 pages and 116 native files
(out of which approximately 39 are media files). The discovery includes the names
and statements of witnesses, reports of investigation by law enforcement, grand jury
transcripts, grand jury exhibits and subpoena returns, court documents, phone
records, recorded phone calls and interviews, and other evidence gathered during the
investigation of this case. And although the discovery is voluminous, the United
16
States has provided a detailed index with each of its discovery productions that
provides the source and general description of each item included in the discovery.
When coupled with the fact that the discovery is being produced in a digital format
that can be readily searched and organized, Amemiya is more than amply armed to
respond to the allegations and prepare a defense, obviating any need for a bill of
particulars. See Clay, 476 F.2d at 1215 (upholding trial court’s decision to grant full
discovery and deny Clay’s motion for a bill of particulars, which requested
information as to the day, time, and place of the commission of the offenses alleged
in the indictment, and his role or participation therein).
Finally, to the extent Amemiya is challenging the indictment with regard to
whether he committed a crime at all, such a challenge goes to the sufficiency of the
evidence. The remedy for this type of grievance is not dismissal of the indictment.
See Buckley, 689 F.2d at 897, (“the issue in judging the sufficiency of
the indictment is whether the indictment adequately alleges the elements of the
offense and fairly informs the defendant of the charge, not whether the Government
can prove its case.”).
//
//
17
IV
CONCLUSION
For the reasons stated, the Court should deny the Motion.
Dated: March 3, 2022. Respectfully submitted,

MERRICK B. GARLAND
Attorney General
RANDY S. GROSSMAN
United States Attorney
/s/ Janaki G. Chopra

MICHAEL G. WHEAT
JOSEPH J.M. ORABONA
JANAKI G. CHOPRA
COLIN M. MCDONALD
ANDREW Y. CHIANG
Special Attorneys
18
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
CR No. 21-00142-LEK
UNITED STATES OF AMERICA, CERTIFICATE OF SERVICE
Plaintiff,
v.
DONNA YUK LAN LEONG (1),
MAX JOHN SWORD (2),
ROY KEIJI AMEMIYA, JR. (3),
Defendants.
IT IS HEREBY CERTIFIED that:

I, Janaki G. Chopra, 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 3, 2022. /s/ Janaki G. Chopra

JANAKI G. CHOPRA
19

United States' Response in Opposition To Amemiya Motion To Dismiss

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Case 1:21-cr-00142-LEK Document 73 Filed 03/03/22 Page 1 of 19 PageID #: 300

Attorneys for the United States of America

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, CR No. 21-00142-LEK

Plaintiff, UNITED STATES’ RESPONSE IN

STATEMENT OF THE CASE

Amemiya’s role in the conspiracy is alleged in the indictment at various

Indictment at ¶¶ 33l, 33y.

Federal Rule of Criminal Procedure 7(c)(1) states:

The indictment or information must be a plain, concise, and definite

An indictment satisfies Rule 7 if it “provides ‘the substantial safeguards’ to criminal

(1962)). Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may

1994) (citation omitted).

Arguments attacking the Government’s evidence is not a basis

can prove its case.”

A. The Indictment Satisfies Rule 7

charged and adequately contains the elements of the charged offenses—conspiracy

(1) there was an agreement between two or more persons to commit

(1) the defendant was an agent of an organization – that is, the

(1) The defendant knowingly participated in, devised, or intended to

In addition, the indictment goes above and beyond in providing 23

settled that in an indictment for conspiring to commit an offense-in which the

1945) (“The sufficiency of an indictment must be determined on the basis of

practical rather than technical considerations. It is not the law that

to charge conspiracy to commit an offense, all the elements need be precisely

unlawful combination, and if the object of the conspiracy is the accomplishment of

B. Amemiya’s Arguments Should be Rejected

should reject all three arguments.

1. The Indictment Charges a Cognizable Offense

Amemiya’s first argument is a jurisdictional one. He contends that the

indictment contains no allegation that he conspired to commit an offense against the

impaired, obstructed, or defeated a lawful function of the United States or an agency

thereof. Mot. at 17.

Amemiya is incorrect. Amemiya recognizes that 18 U.S.C. § 371 criminalizes

two kinds of conspiracies – a conspiracy to commit an offense against the United

clause, with the objects of the conspiracy being violations of 18 U.S.C. §§

refer to a subset of offenses relating only to federal property…The quoted phrase,

principals and accessories, 18 U.S.C. §§ 2, 3, and criminal conspiracies, 18 U.S.C.

statutory language ‘any offense against the United States’ refers to

‘any federal offense.’”).

conspiracy and thus satisfies this requirement. See Indictment at ¶ 4.

obstructed, or defeated a lawful function of the United States or an agency thereof.”

conspiracy include an element that the Kealoha payout impaired, obstructed, or

Administration in its administration and enforcement of its guaranteed loan

willfully and unlawfully conspired to defraud the United States by impairing,

obstructing, and defeating a lawful function of its government, to wit, that of

with conspiring to commit Title 18 offenses.

2. Amemiya is Properly Charged under Section 371

over a conspiracy offense under Section 371.” Mot. at 22-23.

The United States construes Amemiya’s argument to be that he must be

charged with a substantive, or completed, § 666(a)(1)(A) offense in order to be

considered conspiracy and the completed substantive offense to be separate

law of conspiracy identifies the agreement to engage in a criminal venture as an

event of sufficient threat to social order to permit the imposition of criminal

agreement to violate the law, as implemented by one or

the ultimate success or failure of the planned scheme.”). Amemiya’s argument

3. The Indictment Sufficiently Informs Amemiya of the Conspiracy

These claims similarly fail. As discussed above, the indictment provides a

a number of them committed by Amemiya.

tend to effect the object of the conspiracy.” (internal quotations omitted));

that some overt act alleged must be proved.”).

The key factor in deciding whether a bill of particulars is warranted is whether

variety of ways, but is most commonly accomplished by reference to the indictment