United States v. Xiong

United States of America, Plaintiff, v. Seng Xiong, Defendant.

Case No. 16-cr-167 (SRN/HB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

February 13, 2020

MEMORANDUM OPINION AND ORDER

Amber M. Brennan, Craig R. Baune, James S. Alexander, and Surya Saxena, United States Attorney's Office, 300 South 4th Street, Suite 600, Minneapolis, MN 55415, for Plaintiff.

Kyle David White and Thomas Anthony Hagler, Office of Kyle White, 332 Minnesota Street, Suite W-1610, Saint Paul, MN 55101; and Travis M. Keil, Keil Defense, PO Box 44295, Eden Prairie, MN 55344, for Defendant.

SUSAN RICHARD NELSON, United States District Judge

Before the Court is Defendant Seng Xiong's Motion to Vacate, Set Aside, or Correct Sentence [Doc. No. 176] pursuant to 28 U.S.C. § 2255 (2012). In his Motion, Xiong claims he received ineffective assistance of counsel¹ before and during his trial for wire fraud and mail fraud. (Xiong Mot. to Vacate, Set Aside, or Correct Sentence ("Xiong § 2255 Mot.") [Doc. No. 176].) For the following reasons, the Court DENIES Xiong's Motion to Vacate,Set Aside, or Correct Sentence, DENIES his request for an evidentiary hearing, and DENIES his request for a certificate of appealability.

I. BACKGROUND

The facts of this case are well known to the Court and have been summarized in the Eighth Circuit's decision on Defendant Seng Xiong's appeal. See United States v. Xiong, 914 F.3d 1154 (8th Cir. 2019).

A. Factual Background and Trial

During the Vietnam War, many Hmong individuals provided assistance to the United States. Id. at 1157. When the United States withdrew from the region, the Hmong faced persecution by the Laotian government, which caused many Hmong to flee to nearby countries, as well as the United States. Id. Xiong, a Hmong man born in Laos, came to the United States at a young age. Id. In the early 2000s, Xiong participated in various Hmong advocacy organizations. Id.

1. The Hmong Tebchaws

From mid-2014 to early 2016, Xiong represented to the Hmong community that he was working with the United Nations and the United States government to establish a new country for the Hmong people in Southeast Asia. Id. He did so by creating a group named the "Hmong Tebchaws," which translates to "Hmong Country." Id. This project received enthusiastic support from many members of the Hmong community. Id.

Xiong promoted the Tebchaws and solicited "donations" through a conference call line, a YouTube channel, a radio broadcast, a website, and a personal cell phone number. Id. The conference call line had been set up by another Hmong individual, Steve Moua, whopreviously used the call line for unrelated business ventures. Id. Moua also permitted Xiong to use his YouTube channel to upload Xiong's visual presentations. If someone wanted to contribute to Xiong's group, they could do so by depositing funds directly into Xiong's bank account; the account information was available on the Hmong Tebchaws website. Id.

Xiong represented to the Hmong community that various levels or tiers of monetary support would entitle donors to proportional rewards from the soon-to-be established new Hmong country and government. Id. Specifically, he represented that the best benefits would accrue to those who paid between three and five thousand dollars, as they would receive a share of the government's surplus each year. Id. He also stated that space was limited in each donor class, and that Hmong families and individuals needed to obtain membership to join the migration to the new nation. Id. Xiong refused to disclose the identities of those individuals at the United Nations or in the United States government with whom he was working, frequently asserting that his operations were "top secret." Id. On September 16, 2015, Xiong released a final video on Moua's YouTube channel claiming that authorities had approved the new Hmong country, and that the Hmong people would be able to travel to the new country in the next few days. Id. at 1158.

2. Xiong's Arrest and Indictment

Shortly after Xiong's "final" video was uploaded, and following several tips that Xiong was committing fraud, law enforcement began investigating Xiong's Hmong Tebchaw organization. Id. In March of 2016, Xiong was arrested while boarding a flight to Thailand. Id. He was eventually indicted for wire fraud and mail fraud. (See Superseding Indictment [Doc. No. 63].) By the time he was arrested, Xiong had received about $1.7 million fromHmong individuals, $169,000 of which he spent on personal expenditures such as food, clothing, air travel, hotels, and escorts. Id.

3. Assertion of Defense Based on Perceived Public Authority

Prior to trial, and at the government's request, the Court ordered Xiong to disclose whether he intended to raise a defense based on perceived public authority, and what government officials or evidence he would rely on. Xiong, 914 F.3d at 1158; see also Fed. R. Crim. P. 12.3(a) (setting forth rules governing the use of a public authority defense). Xiong failed to make the required disclosures, so the government moved in limine to exclude any evidence related to any perceived public authority defense unless he proffered the evidence by the time of the pretrial conference. (See Gov't Mot. In Limine [Doc. No. 71].) However, even after the Court extended the deadline for the disclosures, Xiong failed to comply, so the Court granted the government's motion and instructed Xiong that if he intended to present any affirmative testimony or evidence at trial claiming that he acted pursuant to public authority, he would have to provide the Court and the government with a detailed list of expected witnesses and evidence relevant to the defense by the time of the pretrial conference. (See Order granting Gov't Mot. In Limine [Doc. No. 76].)

After the deadline passed, Xiong filed a disclosure listing five government officials to whom he would refer, but not call to testify, while presenting his case. (See Xiong Disclosure [Doc. No. 79].) The government again moved in limine to preclude Xiong's counsel from suggesting in his opening statement or before Xiong's case-in-chief that Xiong had met with government officials. (See Gov't Reply to Xiong's Disclosure [Doc. No. 82].) To clear up the issue, the Court scheduled a pretrial hearing and ordered Xiong to clarify whether heplanned to assert a defense based on perceived public authority, and if he did, to proffer evidence sufficient to make a prima facie showing as to each element of his chosen theories. (See Order on Public Authority Defense [Doc. No. 84] at 7-8.) The Court also set forth three defenses Xiong might raise based on perceived government authority: public authority, entrapment by estoppel, and innocent intent. (Id. at 4-6.)

At the pretrial hearing, Xiong's counsel stated that although Xiong did not "have any public authority or any experts who [would] testify[] on behalf of the Defendant," he noted that Xiong had "advised" him that "he will be making references in regards to conversation that he has [had] with public authorities in the past that may have inferred or gave him the - a belief that what he's doing is actually within the legal - the laws of the United States and international laws (sic)." (See TT Vol. 1 [Doc. No. 155] at 4.)² When asked whether he would be asserting a public authority defense or not, Xiong's counsel stated: "I would not be asserting a public authority defense but however the language or the testimony from Mr. Xiong may cross the line, Your Honor." (Id. at 6.) Xiong's counsel was unable to proffer evidence of these communications because Xiong had not shared them with his counsel—allegedly because the communications were "confidential," (id. at 5)—so the Court engaged in a colloquy directly with the defendant. (Id. at 8.) At that time, unexpectedly, Xiong admitted that no government authority ever approved a Hmong nation; at best, government officials informed him of various criteria he would have to meet to qualify. (Id. at 11-12.)

The Court put Xiong under oath shortly after beginning this discussion, (Id. at 13-14), informed him of his right to remain silent, the burden the government faced in proving its case again him, and instructed him that nonetheless, if he chooses to pursue an affirmative defense at trial, he has an obligation (typically through counsel) to proffer the basis of that defense. (Id. at 15.) After Xiong acknowledged these warnings, he spoke with his counsel off the record. (Id. at 17.) Following their conversation, Xiong's counsel informed the court that he would be pursuing an innocent intent defense, not a public authority defense. (Id. at 17, 22 (confirming that Xiong would not be pursuing "any public authority defense"). The government noted that in light of this position, it agreed with Xiong's counsel that, to the extent Xiong was going to offer any evidence of conversations with government officials, such evidence would not be offered until Xiong's case-in-chief. (Id. at 21-22.)

Xiong's trial lasted eight days. During that time, the government presented evidence that Xiong had lied to his followers about working with authorities to create a Hmong homeland. Xiong, 914 F.3d at 1158-59. Several government officials testified that Xiong had never visited the White House, had never spoken with the State Department about forming a new nation, and had never notified the United Nations of the Hmong Tebchaws and their hope for a homeland. Id. at 1159. In fact, the evidence identified no one at the United Nations nor any government official who was aware of Xiong or his project, and had never approved the creation of a new Hmong nation. Id. And while Xiong had, in the past, been involved in Hmong advocacy, there was simply no evidence that he had ever coordinated with the United Nations or the United States on creating a Hmong country. Id. The jury returned guilty verdicts on both counts. (See TT Vol. 8 [Doc. No. 162] at 1361.)

For sentencing, new counsel was...