Seeking Justice

BY MALIA ZIMMERMAN – Sam Khanja remembers the day his life changed forever – his father died. He was just 14 years old, but he dropped his childhood games to manage farming duties at his family’s 25-acre farm in Maha Sarakham, Thailand. He and his three sisters made enough money on their cucumbers and rice sales to get by, but Khanja dreamed of a better life.

So when Khanja read the Aloun Farms advertisement posted on the Thai Department of Labor bulletin board for a full-time landscaping job in Hawaii that paid $9.42 an hour, he took the job. But the decision Khanja made in 2004 to travel to Hawaii with 43 other Thai men to work at Aloun Farms would not only devastate his family financially, but it would land him 7 years later in the middle of one of Hawaii’s most notorious human trafficking trials.

This Wednesday, Honolulu U.S. District Court Judge Susan Oki Mollway will oversee what is expected to be a three- to four-week trial to determine whether Aloun farms owners Michael Mankone Sou and Alec Souphone Sou are guilty of 12 charges related to forced labor, document servitude and visa fraud related to their Thai worker recruitment.

On Monday, Defense attorneys Thomas Bienert Jr. and Thomas Otake argued that the charges their clients should be dropped because what they did “is not a crime,” or human trafficking, rather a dispute over wages.

“This case is kind of an interesting one because it’s about whether you can extend this law and call something forced labor when at most what you did was tell people what is the natural consequence of them not doing their job,” Bienert said.

“If the government is allowed to apply this forced labor statute in a way that they’re attempting to do so, I think a lot of employers need to be worried,” Otake said.

The defense team also tried to get more information on what the grand jury was told about the forced labor statute and changes made in 2008 by congress to include financial harm. Before that, it was a crime to force someone to work under the threat of “serious harm.” Prosecutors continue to argue that serious harm can also be financial.

This defense’s legal strategy outlined Monday is a change from January 2011, when each brother pled guilty to one charge of importing laborers from Thailand to force them to work and agreed to cooperate with the federal government’s efforts to prosecute others involved with this case in Thailand. They later backed out of the deal.

In 2009, the brothers were indicted on three counts including forced labor, document servitude and visa fraud for their role in the recruitment scheme that Thai workers say left them in deep financial trouble.

From April 2003 and February 2005, the indictment said the Sou brothers and William Khoo of the Thai Taipei Manpower Company, enticed the “impoverished, rural farm workers” making $1,000 a year to work instead at Aloun Farms for $9.60 an hour for three to four years, housing and transportation included.

Workers paid high recruitment fees upfront – of between $15,000 and $22,500 or an estimated 15 to 22 years of their typical annual income – by obtaining high interest loans that they secured with their family home and farmland. The Sous received “kickbacks” from the workers recruitment fees, the indictment says.

Udon representatives told them that if the workers ran away in the United States even once or defaulted on their loan, they’d owe $1 million to $1.25 million in penalties.

Court documents say the Sou brothers confiscated the workers passports and H-2A visas when they arrived in September 2004 and paid workers just $5 to $6 an hour or a flat monthly wage also deducting money for meals and accommodations.

The Sous were able to obtain through The Aloun Foundation, their non-profit 501(c) 3, several loans from the Department of Agriculture including $642,000 and $2,100,000 for farm labor housing and $346,500 from the same department for rural rental assistance payments for a total of $3,088,900 from 2004 to 2009.

But the 5-star accommodations the Thais were promised was actually a 5-bedroom house in Waianae that would house all of them, said Khanja, forcing the workers to cram into the bedrooms and bathrooms to sleep.  In off work hours, workers confirm they were locked in that two-story house, surrounded by a chain link and concrete fence, “limiting their movement.”

Some of the workers were moved weeks later to a storage container on the farm property, which had no air conditioning or indoor plumbing, and they all were ordered not to socialize with outsiders, the workers said.

When the workers complained that they didn’t get the pay they were promised and unfairly had expenses taken out of their pay so they made minimal or no wages, the indictment said the Sou brothers “threatened to send them back to Thailand knowing the workers could not pay off their debts and would cause serious economic harm including the loss of their family property.”

There has been high drama throughout this case leading up to the July 2011 trial.

• After sending an email around asking for friends, business associates and employees to show up in court and to write letters in their favor, the Sous bused in dozens of their workers to line the courtroom for their sentencing.

• Two former governors and some of Hawaii’s most influential bankers, agricultural leaders and business people partnering with the Sous, are siding with the brothers via letters to the judge and statements to the news media.

• To show that the Thai workers were well cared for during their employment at Aloun from September 2004 to February 2005, the defense team at that sentencing hearing showed a 10-minute video featuring Aloun employees they claimed have cooked or driven for them – and included testimony of a Buddhist priest about the workers’ emotional well being.

• Federal prosecutors filed a superseding indictment on October 27 after the Sous backed out of their plea deal and included accusations that the Sous “corruptly obstructed, influenced, and impeded an official proceeding” with a video “that contained false and misleading representations.”

• Mike Sou was under house arrest in 2010 with “no contact” order with witnesses since reportedly trying to influence Thai workers to change their testimony and say they lied to the FBI and in return offering them through a third party $35,000 each.

• The case put Hawaii in the international spotlight after the New York Times editorial page, a French documentary, Al Jazeera London and Asian media covered the story.

• The Sous brought in Bienert, a former California-based U.S. attorney, deemed the “Perry Mason of Prosecution” before he became a defense attorney.

While Khanja is testifying here in America, his sisters are in court in Thailand hoping to delay foreclosure. If he doesn’t pay back the entire $20,000 plus $13,000 in interest for a total of $33,000 soon, his family will lose everything they own.

Meanwhile, despite the defense attorneys’ attempt to get the case thrown out Monday, Mike Sou’s attorney, Thomas Otake, said his client is “very eager and very happy that the trial is here,” adding “these false allegations have been devastating to his business and to himself personally.”

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