15 Nov 2017
- By Bryan Manabat – [email protected] – Variety News Staff
DAVID Trung Quoc Phan, operator and owner of United Brothers Inc., doing business as TBK Auto Cares, wants a new trial following his conviction on Oct. 18, 2017 on charges of mail fraud, fraud in foreign-labor contracting, fraud and misuse of visas and permits.
Phan, through attorney Steven Pixley, filed in the District Court for the NMI on Tuesday a motion for judgment of acquittal and a new trial.
Pixley said the evidence submitted by the U.S. government prosecutors was insufficient to convict his client, and that the court should correct the deficiency.
Phan was one of three men found guilty by a federal jury, and the second defendant to demand a new trial.
Muksedur Rahman, a co-defendant, earlier said his conviction was based on the testimony of witnesses who “not only lied to get to Saipan, but also developed a scam to stay here.” The third defendant is MD. Rafiqul Islam.
In Phan’s case, Pixley said the U.S. government failed to meet its burden with respect to the charges of two counts of mail fraud relating to the original CW-1 petitions submitted prior to the arrival on Saipan of the workers from Bangladesh.
Pixley said three witnesses called by the U.S. government testified that they had no evidence that Phan had an intention to hire the workers.
Moreover, none of the workers testified that they paid any recruitment fees to Phan or that he recruited them or traveled to Bangladesh, Pixley said.
The prosecutors likewise failed to present sufficient evidence that Phan participated in a scheme to defraud, Pixley added.
As for Phan’s conviction on three counts of fraud in foreign-labor contracting, Pixley said federal prosecutors failed to present sufficient facts demonstrating the solicitation, recruitment or hiring of a person outside of the U.S. with the intention to defraud in connection with employment in the U.S.
Pixley added that the criminal offense requires the recruitment, solicitation or hiring to have been accomplished by materially false or fraudulent pretenses, representations or promises regarding employment.
He said the federal prosecutors failed to present any competent evidence that Phan intended to defraud the workers.
In fact, Pixley said the evidence showed that his client intended to provide jobs for the workers at TBK Auto Cares.
Pixley said it wasn’t until after the workers arrived on Saipan on April 21, 2016 that Phan learned that they were unskilled and that they had misrepresented their qualifications to him.
According to Pixley, a new trial is justified because “the verdict was against the weight of the evidence, and because the trial was permeated by false testimony of the alleged Bangladeshi victims, rendering the trial fundamentally unfair and in violation of due process.”
In addition to false testimony, Pixley said each of the alleged victims lied to U.S. embassy officials in Dhaka, Bangladesh and submitted false documents in support of their visa applications.
He said a new trial is warranted as Phan’s conviction is “not supported by constitutionally sufficient evidence,” and “the due process clause of the Fifth Amendment protects an accused from conviction except upon evidentiary proof beyond a reasonable doubt.”
Pixley said a review of the record supports granting a new trial to serve the interests of justice.
Source: Marianas Variety : http://www.mvariety.com/cnmi/cnmi-news/local/100107-businessman-in-foreign-labor-fraud-case-asks-for-new-trial