Thursday, December 01, 2011


How guilty they once said they were—judge denies attorneys fees in aborted human trafficking case

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…

by Larry Geller

Judge Susan Oki Mollway issued her order yesterday (see below) denying attorneys fees to Mike and Alec Sou, owners of Aloun Farms. Their trial was aborted after just a few days when it came out that a federal prosecutor had incorrectly instructed the grand jury on the law.

The case remains a bit of an anomaly—because the same judge previously threw out the Sous’ guilty plea at a sentencing hearing. In other words, at one point they admitted guilt and came before the judge for sentencing. But the plea agreement was thrown out by the judge, and they then withdrew their plea.

The presumption of innocence is very strong in US law. Even the folks killed in Pakistan by President Obama’s drones are presumed to be innocent because they were never tried and convicted in a court of law. The Sous also were never convicted, and so they stand innocent.

They didn’t get their attorneys fees back under provisions of the “Hyde Amendment” because (see the order), the judge concluded that the federal case against them was not frivolous, vexatious, or brought in bad faith. Nor, of course, did they prevail at trial. The trial was never concluded.

Unless readers have been following the excellent coverage of this case by Malia Zimmerman in Hawaii Reporter (see latest article here), they may have formed a conclusion, supported by the coverage in the commercial media, that the Sous have been found innocent. There is a difference between not having been found guilty and being found innocent. No jury reached a conclusion as a result of a trial one way or the other. Still… there was a time when they faced sentencing and significant jail time—because they pled guilty under a plea agreement.

Confused? Remember, they came before a judge to be sentenced. The judge instead threw out the plea agreement.

The court order succinctly describes what happened. It should become the defining reference for this trial.

A snip from the court order:

Of particular significance to the court are 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.

Even 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 needs to be said that plea bargains themselves should be questioned. Is justice served when prosecutors offer a reduced yet substantial prison sentence in exchange for not tossing the dice on a long list of charges that bring with them vastly longer jail terms? Federal prosecution leans heavily on plea agreements, raising issues of whether the process really determines guilt or innocence.

Download 1-09-Cr-00345 32 Order Denying Attny Fees

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