Mon Ethos Pro Support is not entitled to $44,800 in attorney fees and costs from its legal fight with the V.I. Police Department, V.I. Superior Court Judge Denise M. Francois has ruled, noting that the firm’s founder admitted to fraud in his dealings with the V.I. government in a separate federal case and is the one who owes the government restitution.

The  V.I. Justice Department brought the complaint against Mon Ethos and its founder David Whitaker on Aug. 2 in V.I. Superior Court, alleging the company breached its contract for cybersecurity services with the VIPD, was holding sensitive electronic equipment “hostage,” and threatened to delete data critical to ongoing investigations and court cases unless it was paid some $500,000 it claimed it was owed.

The DOJ voluntarily dismissed the civil action on Aug. 27 after the property was returned, including cellphones, laptops, tablets and the VIPD’s GrayKey — an electronic device used to unlock and retrieve data from other electronic devices.

That same day, Mon Ethos filed a motion for $44,820 in costs and attorney fees, calling the government’s claims “entirely frivolous” and alleging that the DOJ dismissed the complaint rather than respond to the company’s earlier motion to dismiss and award attorneys’ fees within the 20 days allotted by the court.

Francois rejected those arguments in her order issued Tuesday, writing that whether to award attorney’s fees remains in the court’s discretion, despite Mon Ethos’s claims that it was the prevailing party and was entitled to the money because the case was dismissed without prejudice, meaning it was at risk that it could be brought again.

“The Government has dismissed the case without prejudice, but has not refiled a new case. Additionally, the Government is the clear prevailing party, as the goal of its litigation was to recover the devices and the data on said devices,” said Francois.

“Mon Ethos incurred the attorney’s fees and costs by not promptly returning the items to which it had no claim back to the Government, and instead laterally challenging the [temporary restraining order] and the previously assigned Judge,” she wrote, referring to Whitaker’s successful bid to remove Judge Carol Thomas-Jacobs from the case because she was involved in a murder investigation that he worked on and discussed with her in 2022 when she was attorney general.

Further, “Whitaker’s [federal] plea agreement requires him to make restitution to the Government,” she said.

“Lastly, it is against public policy and the public’s interest in rewarding Mon Ethos for engaging in fraudulent activity, dubious at best (and criminal at worst) business practices, and impeding criminal investigations, including homicides,” said Francois.

Whitaker, whose contracts with the VIPD became the focus of an FBI investigation that led to the resignations of VIPD Commissioner Ray Martinez and Office of Management and Budget Director Jenifer O’Neal in June, admitted to two counts of wire fraud and one count of bribery concerning programs receiving federal funds in a plea deal with federal prosecutors unsealed last month in V.I. District Court.

Currently free on an unsecured $250,000 bond, his sentencing hearing in that case is set for 4 p.m. Dec. 4 in District Court at the Ron de Lugo Federal Building on St. Thomas.

According to the partially redacted plea agreement, Whitaker’s bribery charge concerns money and favors he gave to a VIPD official identified as “Public Official One” in return for payment of outstanding invoices under his cybersecurity contracts with the department.

One wire fraud charge stems from 12 surveillance devices Whitaker claimed to have found in V.I. government offices in a sweep he was hired to conduct in 2022 after a miniature spy camera was discovered at the Division of Personnel. In fact, he had planted them, according to the plea deal. He then billed the VIPD $130,195.10 for his “work.”

The other wire fraud count relates to false statements Whitaker made to the Small Business Administration to secure a potentially forgivable Paycheck Protection Program loan for $469,903 in February 2021, it said. The PPP was meant to help small businesses keep their workforces employed during the COVID-19 pandemic.

The wire fraud is because in the first instance, Whitaker transferred money from his endeavor to his bank account in Puerto Rico through New York, and in the second, submitted his PPP loan application from a computer in the Virgin Islands through servers based in Oregon.

A pre-sentence investigation is underway. However, according to the plea agreement, the bribery count carries a maximum of 10 years in prison and the wire fraud charges up to 20 years behind bars. Each charge also carries a $250,000 fine. Whitaker also could have to pay the government anywhere from $196,195 to a maximum of $666,098 if it is unable to recover the proceeds of his crimes, the deal states.

Francois cited the plea deal in the footnotes of her order Tuesday, further noting that Whitaker was arrested and convicted for bank fraud and e-racketeering in 1997 and again in 2008 on a multicount fraud complaint. While facing more than 60 years in prison, he served only five due to working as an FBI operative in a sting against Google.

Contacted after the plea deal was announced in September, FBI Special Agent and Public Affairs Officer Limary Cruz-Rubio declined to comment on specific cases but hinted at future developments. When asked about the possibility of more arrests in the case, she stated, “You can rest assured that for any violations under our purview, there will be arrests on the horizon. The FBI takes seriously its duty.”