Mike and Alex Sou at their Kapolei-base Aloun Farm
Mike and Alex Sou at their Kapolei-base Aloun Farm

BY MALIA ZIMMERMAN – Mike and Alec Sou, the brothers who operate Aloun Farms and were charged in 2009 by the U.S. Justice Department with 12 counts related to their recruitment of Thai workers, lost an important motion in federal court today.

The Sous had asked U.S. District Court Chief Judge Susan Oki Mollway, who presided over their aborted trial, to compel the government to cover the cost of their legal fees, roughly $500,000, on the grounds that the case against them was “frivolous.”

The dismissal came without explanation in the early stages of the trial and followed the departure of the lead prosecutor in the case, Washington D.C.–based trial attorney Susan French of the Civil Rights Division in the U.S. Justice Department.

But Mollway, who heard arguments from both sides in early November on the legal fees issue, denied the motion in a detailed 28-page ruling issued Thursday morning.

Mollway notes that after the Sous were indicted in August 2009 on three counts, and through a plea agreement, they each entered a guilty plea in January 2010 to one count of conspiracy to commit forced labor.

But during sentencing, the defendants, then represented by attorneys Eric Seitz and Howard Luke, refused to agree with the language in the plea agreement.

The judge recounts the events: “The Sous argued vigorously that their guilty pleas remained in effect in spite of their challenges to various factual assertions. Thus, for example, Mike Sou’s counsel argued, ‘Again, at no time will I suggest to you that they are not, in our opinion, guilty of participation in this conspiracy. But what I want to argue to you is that none of the victims said anything to implicate these defendants in the most serious and lurid allegations that have been made. We do not in any way seek to withdraw those pleas or to in any way minimize the fact that the conspiracy occurred and that these two men were part of it.’”

After several hours of such deliberations, the judge said she had no choice but to throw the entire agreement out.

After that, the Sous replaced their attorneys with Thomas Otake and Thomas Bienert, and pled not guilty to the charges and the U.S. Justice Department filed a superceding indictment on October 27, 2011.

The trial began July 29, but the justice department moved to dismiss all charges on August 4.

The Sous attorneys were using the “Hyde Amendment”, which allows a defendant who can prove the criminal prosecution was either vexatious, frivolous, or in bad faith to recover legal fees from the government and specifically it looks at prosecutorial misconduct not a mistake, to justify their request.

The attorneys who argued for the government against the fee reimbursement said it would be unprecedented that a judge would award fees to a defendant that had plead guilty before having the charges dismissed.

Mollway agreed, zeroing in on the Sous’ pleas of guilty to the charge of conspiracy to commit forced labor in the Original Indictment.

“A guilty plea requires much more than a mere statement that one is guilty. Pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, a defendant who pleads guilty must do so under oath and must participate in a court proceeding in which a judge determines that the defendant understands his rights, the nature of each charge to which he is pleading, the consequences (including the maximum prison term) of pleading guilty, the manner in which his sentence will be determined, and any terms in his plea agreement that affect his right to appeal or to collaterally attack his sentence. Before accepting a guilty plea, the judge must address the defendant personally in open court and determine that his plea is voluntary and not the result of force, threats, or promises beyond what is promised in the plea agreement. The judge must also determine that there is a factual basis for the guilty plea. Rule 11 was complied with in this case.

Mollway said during the Rule 11 hearing, Magistrate Judge Kevin Chang, who was conducting the hearing with the Sous’ consent pursuant to their waiver of a hearing before a district judge, “asked the Sous to state in their own words what they had done that constituted the crime to which they were pleading guilty.”

She said when the court expressed concern at the later sentencing hearing about whether accepting the Sous’ challenges to certain factual allegations would leave the court with admissions sufficient to support their guilty pleas, “the Sous insisted that they were in fact guilty of conspiracy to commit forced labor.”

“It is difficult for the court to accept the Sous’ present contention that the charge of conspiracy to commit forced labor was frivolous when at one point they were adamantly maintaining that they were guilty of that very charge in the face of questions from the court as to whether the record contained sufficient unchallenged facts to support their guilty pleas. If the forced labor conspiracy charge was not frivolous, it is no great leap to find the substantive forced labor charges similarly not frivolous,” Mollway said.

Attorneys representing more than 30 victims who plan on filing a civil suit were pleased by the ruling.  Immigration Attorney Clare Hanusz said: “It seemed like this decision took a while to come, but we can understand why after reading Judge Mollway’s detailed and meticulous analysis of a complicated series of events. The underlying charges or forced labor and other crimes were not at all frivolous, despite the dismissal of the criminal case.”

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