An attorney for Donna Leong, Honolulu’s former top attorney who was federally indicted this month for her involvement in a payout to the former police chief, believes the city’s former budget director can prove her client is not guilty, she said in a court filing on Thursday.

Leong is accused of conspiring with former police commissioner Max Sword and managing director Roy Amemiya to circumvent the Honolulu City Council to pay $250,000 to then-chief Louis Kealoha when he was under investigation for corruption. To make the payoff, prosecutors allege the defendants improperly used money from a city program that received federal funding. All the defendants have pleaded not guilty.

Former Honolulu budget and fiscal services director Nelson Koyanagi is a “critical witness” who can demonstrate the transaction was proper, attorney Lynn Panagakos wrote in a motion asking the court to depose him.

“If deposed, Mr. Koyanagi is expected to testify that the City Ordinances provide ways to process transactions legally, without going to City Council for approval, and this is not unusual,” she wrote.

Time is of the essence to depose Koyanagi because Koyanagi is experiencing unspecified medical issues, Panagakos said, adding there is “a substantial likelihood that he will not be available to testify at trial.”

“The failure to preserve Mr. Koyanagi’s testimony by means of the requested deposition will deprive Ms. Leong of her Sixth Amendment right to a fair trial,” Panagakos wrote.

Civil Beat was unable to reach Koyanagi for comment on Thursday.

The defendants turned themselves in to the FBI on Jan. 12 and were released on unsecured $50,000 bonds. A trial was scheduled to begin on March 14.

The indictment notes that it is illegal to transfer city funds in excess of $100,000 “from an activity” or “between characters of expenditure within the same activity.”

According to Panagakos, Koyanagi can testify that this rule did not apply because the funds were taken from the police chief office’s salary budget and therefore did not represent a transfer.

The indictment alleges that Leong conspired to have Koyanagi transfer funds from an account for vacant positions in HPD and falsely claim that the money was needed to fill vacancies. But Panagakos says in the filing that never happened.

“Mr. Koyanagi is the essential witness who can exculpate Ms. Leong on these allegations,” the filing states.

The government alleges Leong told former interim HPD chief Cary Okimoto that he should falsely state to the city council that the money would be used for new hires. But a recording of the conversation does not corroborate that claim, Panagakos wrote.

“The words in the recording do not match the words in the indictment,” she said.

“In the recording, Ms. Leong never suggests that Mr. Okimoto should make a false statement about new hires. Instead, Ms. Leong describes her understanding of statements Mr. Koyanagi made to her concerning the PVP account.”

In another recorded conversation among Leong, Koyanagi, Okimoto and Sword, Leong is accused of again proposing to lie to the city council, the filing states.

“Again, the words in the recording do not match the words in the indictment,” Panagakos wrote.

“The Government’s allegation is based on an incorrect interpretation of the recording. If deposed, Mr. Koyanagi would explain the content of this conversation, where Mr. Koyanagi explained that HPD might lawfully qualify for the PVP account, and he would flatly contradict the Government’s spin on the recording,” she added.

The former budget director can also dispute Okimoto’s contention that paying Kealoha $250,000 using HPD funds would require cuts to police services, Panagakos said. HPD had approximately $6 million budgeted for Fiscal Year 2017 that had been left unspent, according to the filing.

“Thus, HPD’s allegation that the severance payment affected public safety and could lead to HPD cutting services was not true,” Panagakos wrote.