United States v. Seng Xiong , 914 F.3d 1154 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3283
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Seng Xiong
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 16, 2018
Filed: February 1, 2019
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury convicted Seng Xiong of mail and wire fraud in violation of 18 U.S.C.
§§ 1341 and 1343. The district court1 sentenced Xiong to 87 months’ imprisonment.
Xiong argues that the court erred in disallowing him from presenting affirmative
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
defenses based on perceived government authority, that the court violated his Fifth
Amendment rights by questioning him directly, that the court violated his Sixth
Amendment rights by barring him from presenting witnesses, and that the court erred
in imposing a sentence that is procedurally and substantively unreasonable. We
affirm.
I. Background
Many members of the Hmong ethnic group living in Laos assisted the United
States during the Vietnam War. When the United States withdrew from that region,
the Hmong faced persecution by the Laotian government. Many Hmong fled to
Thailand and other nearby countries, and some eventually settled in the United States.
Xiong, a Hmong man born in Laos, came to the United States at a young age.
Beginning in the early 2000s, Xiong participated in various Hmong advocacy
organizations. Relevant here, 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 in Southeast Asia. He
created a group named the Hmong Tebchaws, which translates to “Hmong Country,”
and referred to himself as Keng Ther Seng, or “First Leader.” Xiong’s homeland
project received enthusiastic support from many in the Hmong community who desire
to return to their home country, to be free from persecution, and to reclaim the lives
they had before the Vietnam War.
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. Steve Moua, another Hmong individual, allowed Xiong to use the call line
he had previously established to sell various supplements within the Hmong
community. Moua also used his YouTube channel to upload Xiong’s visual
presentations. Xiong’s website provided a “Returning Home Registration Form” and
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his Wells Fargo bank account number so that donors could deposit money directly
into his account.
Xiong told his followers that various levels of monetary support would entitle
donors to proportional rewards from the soon-to-be established Hmong government.
The best benefits would accrue to those who paid amounts between three and five
thousand dollars, as they would receive a share of the government’s surplus each
year, whether it was “billions, millions, [or] trillions.” He told his followers 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. He also told
his followers that he could not share much information with them because his
operations were “top secret.” He said that his project was advancing and that the
United States government had considered, and then approved, the new Hmong nation.
He released a final video on September 16, 2015, which asserted that authorities
would “take [the Hmong] across the ocean” to a newly established homeland within
the next few days.
Shortly thereafter, Wells Fargo froze Xiong’s account after receiving tips that
it was being used in connection with fraud. Law enforcement began investigating
Xiong within weeks of his final video. Xiong was arrested and charged in March
2016. By that time, Xiong had received roughly $1.7 million from Hmong
individuals, $169,000 of which he spent on personal expenditures such as food,
clothing, air travel, hotels, and escorts.
At the government’s request, the district court ordered Xiong to disclose
whether he intended to raise a defense based on perceived government authority. See
Fed. R. Crim. P. 12.3(a). Following Xiong’s failure to make the required disclosures,
the government moved in limine to exclude any evidence related to any perceived
government authority defense unless Xiong proffered the evidence by the time of the
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pretrial conference. The court extended the deadline for the Rule 12.3 disclosures,
but after Xiong failed to comply, the district court granted the government’s motion.
After the deadline had expired, Xiong responded to the court’s order with a list
of five government officials to whom he would refer, but not call to testify, while
presenting his case. The government again moved in limine to prevent Xiong’s
counsel from suggesting in his opening statement or before presenting Xiong’s case-
in-chief that Xiong had met with government officials. The court then scheduled a
pretrial hearing, ordering Xiong to clarify whether he planned to assert a defense
based on perceived government authority, and if he did, to proffer evidence sufficient
to make a prima facie showing as to each element of his chosen theories of defense.
The court identified the three defenses Xiong might raise based on perceived
government authority—public authority, entrapment by estoppel, and innocent
intent—and set forth the elements of each defense.
At the pretrial hearing, Xiong’s counsel stated that Xiong would testify
regarding communications with government officials that led Xiong to believe he
could legally pursue operations to establish a Hmong nation. Xiong’s counsel was
unable to proffer evidence of these communications, however, and asked the court to
question Xiong directly to obtain evidence. Noting that the requested procedure was
unusual, the court obliged. Without first being placed under oath, Xiong said that he
had spoken in 2006 with government official Jackie Sanders, who had promised to
forward Xiong’s letter proposing a Hmong nation to the White House. Xiong offered
no further evidence of this conversation. The court questioned Xiong about the other
government officials he had named, and Xiong provided no evidence, other than his
testimony, that he had spoken with the officials listed. He provided no evidence of
any further government contact.
Recognizing that Xiong was not under oath, the court then placed him under
oath and continued questioning him about his perceived government authority
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defenses. After conferring with Xiong, defense counsel informed the court that
Xiong would employ only the innocent intent defense, which did not require pretrial
disclosures. The government requested that Xiong’s counsel not refer to any
conversations with government officials before the presentation of Xiong’s case-in-
chief, and Xiong’s counsel agreed.
The government presented evidence at trial that Xiong had lied to his followers
about working with authorities to create a Hmong homeland. Various 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. The
evidence showed that United States and United Nations officials were not aware of
Xiong or his project and never approved the creation of a new Hmong nation. Rather,
the evidence showed that Xiong had attended roughly three United Nations sessions
between 2006 and 2008, when he was affiliated with an advocacy organization called
the Congress of World Hmong People, and an informative briefing regarding the
Hmong community at the United Nations Visitor Center on September 4, 2015.
Special Agent Michael Olson testified that anyone may request an informative
briefing on the topic of the requestor’s choosing, courtesy of the United Nations tour
and visiting service.
In his opening statement, Xiong’s counsel highlighted Xiong’s “incredible
passion for his people.” He told the jury to “consider the element of intent” and
promised to present evidence that Xiong had planned to establish a homeland when
he solicited donations. Xiong, his brother, and four members of the Hmong
Tebchaws testified for the defense. Aside from his testimony, Xiong presented no
evidence of communications with United States or United Nations officials. In his
closing, Xiong’s counsel argued that Xiong believed in his mission and lacked intent
to commit fraud. Xiong’s counsel also blamed Steve Moua and rival cultural groups
for framing Xiong. The jury returned guilty verdicts on both counts.
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At Xiong’s request, new counsel was appointed to represent him at sentencing.
The court determined that Xiong’s base offense level under the United States
Sentencing Guidelines (Guidelines or U.S.S.G.) as to each charged offense was 7.
The court applied a 16-level enhancement for the amount of loss, § 2B1.1(b)(1)(I),
a 2-level enhancement for committing the offense through mass marketing,
§ 2B1.1(b)(2)(A)(ii), and, finally, a 2-level enhancement under § 3A1.1(b)(1) in light
of its determination that Xiong had preyed on vulnerable victims, to which Xiong
lodged an unsuccessful objection. The court determined that Xiong’s criminal history
category was I and that his adjusted base offense level was 27, resulting in a
Guidelines sentencing range of 70-87 months on each count. It sentenced Xiong to
87 months’ imprisonment on each count, to run concurrently. The court also imposed
a 3-year term of supervised release and restitution totaling $1,226,466.
II. Discussion
A. Defenses Based on Perceived Government Authority
We have recognized three defenses based on perceived government authority:
public authority, entrapment by estoppel, and innocent intent. “‘Public authority’ has
been described as an affirmative defense where the defendant seeks exoneration
based on the fact that he reasonably relied on the authority of a government official
to engage him in covert activity.” United States v. Achter, 52 F.3d 753, 755 (8th Cir.
1995). Entrapment by estoppel applies “when an official assures a defendant that
certain conduct is legal, and the defendant reasonably relies on that advice and
continues or initiates the conduct.” Id. (quoting United States v. Smith, 940 F.2d 710,
714 (1st Cir. 1991)). Under the innocent intent defense, a defendant claims that “he
lacked criminal intent.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368
n.18 (11th Cir. 1994). The public authority and entrapment by estoppel defenses
require pretrial disclosures, including notice and a list of witnesses, under Federal
Rule of Criminal Procedure 12.3. The innocent intent defense does not require such
disclosures because it is based on the contention that the government failed to prove
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the intent element of the crimes. After the pretrial hearing, the district court barred
Xiong from raising either the public authority or entrapment by estoppel defenses, but
Xiong remained free to pursue an innocent intent theory.
Xiong argues that the district court abused its discretion by requiring him to
show actual authority from a government official to raise any of the three perceived
government authority defenses.2 Xiong argues that the court’s incorrect legal
standard barred him from mentioning government contacts and raising perceived
government authority defenses at trial.3 “A district court abuses its discretion if it
commits an error of law.” Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001).
Because Xiong failed to object to the preclusion of any public authority and
entrapment by estoppel defenses, he has not properly preserved this issue for appeal.
Fed. R. Evid. 103(a)(2). We therefore review the district court’s decision to exclude
the defenses and related evidence for plain error. Walker v. Kane, 885 F.3d 535, 538
(8th Cir. 2018).
2
Xiong concedes that the court correctly explained these requirements in its
order requiring a pretrial hearing, but he claims that the court deviated from its order
at the pretrial hearing and required him to show actual authority from a government
official to present any of the three perceived government authority defenses.
3
The court allowed Xiong to present an innocent intent defense without any
pretrial proffer, and he availed himself of the opportunity, despite his arguments to
the contrary. This is clear from his counsel’s remarks and questioning throughout the
trial. For example, Xiong’s counsel promised in his opening remarks to “present to
[the jury] what [Xiong’s] intentions are, what his good faith intentions are in this --
in his journey or in his pursuit of a Hmong Country or Hmong Tebchaws for his
members and his people.” Counsel continued “I want you to consider the element of
intent . . . you will hear directly from Mr. Xiong the reasons and the basis and the
substantiation for his actions.” We thus reject any argument that the court precluded
Xiong from presenting this defense.
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The record reveals that the district court required Xiong to show actual
authority only for a public authority defense. We have held that such a defense is
available when a defendant “reasonably relied on the authority of a government
official,” Achter, 52 F.3d at 755, but we have not yet addressed whether the defense
requires a showing of actual, as opposed to apparent, authority.4 See United States
v. Evans, 972 F.2d 355 (8th Cir. 1992) (unpublished table decision) (discussing but
not deciding the issue). Nor does Xiong provide us an occasion to do so. He offered
no evidence sufficient to meet a lesser apparent authority standard, rendering
harmless any error by the district court.
Because Xiong failed to show even apparent authority, the court did not err in
preventing him from raising a public authority defense at trial. Nor did the court err
in precluding him from presenting an entrapment by estoppel defense in light of his
failure to offer any evidence. See Achter, 52 F.3d at 755 (concluding that the district
court properly precluded the defendant from presenting public authority or
entrapment by estoppel defenses because he proffered insufficient evidence to support
the defenses); see also United States v. Benning, 248 F.3d 772, 777 (8th Cir. 2001)
(same as to entrapment by estoppel defense).
B. Constitutional Violations
Xiong argues that the district court violated his Fifth Amendment right against
self-incrimination by directly questioning him in the pretrial conference. The Fifth
Amendment promises that no person “shall be compelled in any criminal case to be
a witness against himself.” U.S. Const. amend. V. This privilege against self-
4
Our sister circuits to consider the issue unanimously require actual authority.
See United States v. Sariles, 645 F.3d 315, 319 (5th Cir. 2011); United States v.
Fulcher, 250 F.3d 244, 254 (4th Cir. 2001); United States v. Pitt, 193 F.3d 751, 758
(3d Cir. 1999); Baptista-Rodriguez, 17 F.3d at 1368 n.18; United States v. Duggan,
743 F.2d 59, 84 (2d Cir. 1984).
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incrimination “is a fundamental trial right,” and while pretrial questioning may
“ultimately impair that right, a constitutional violation occurs only at trial.” United
States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). Xiong was questioned
outside the presence of the jury, and his statements were not presented to the jury.
Xiong alleges that the court at one point “relayed [his statements] to the jury as an
admission of guilt,” Appellant’s Br. at 28, but the language he cites comprises the
district court’s summary of Xiong’s indictment for the jury. We conclude that Xiong
has failed to show any violation of his right against self-incrimination.
Xiong also contends that the district court violated his Sixth Amendment right
to compulsory process by requiring actual authority to present his defenses and by
determining that Xiong could not refer to United States or United Nations officials
when asserting his innocent intent defense. The Sixth Amendment guarantees an
accused the right to “have compulsory process for obtaining witnesses in his favor.”
U.S. Const. amend. VI. “Before a criminal defendant is entitled to compulsory
process, however, he must establish that the testimony of the witnesses whose
presence he wishes to compel is favorable and material.” Perry v. Lockhart, 871 F.2d
1384, 1386-87 (8th Cir. 1989). Xiong’s failure to name any witnesses that he was
prevented from calling precludes any evaluation of the materiality of such testimony,
and we thus conclude that Xiong’s right to compulsory process was not violated.
We do not consider Xiong’s argument that his trial counsel provided
ineffective assistance in violation of his Sixth Amendment rights. “We will not
consider an ineffective assistance claim not first presented to the district court and on
which a proper record has not been made.” United States v. Duke, 940 F.2d 1113,
1120 (8th Cir. 1991).
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C. Sentencing
Xiong claims that the district court’s sentence was substantively unreasonable
because the court gave inadequate weight to the sentencing goal of reducing disparity
among similarly situated defendants. He compares his 87-month sentence to the 120-
month sentence of fraudster Denny Hecker, who stole substantially more money than
Xiong did. We discern no abuse of discretion. United States v. Soliz, 857 F.3d 781,
783 (8th Cir. 2017) (standard of review). The court explicitly considered disparities
among similarly situated defendants and adequately explained its sentence, reasoning
that Xiong had lied to his followers, preyed on their vulnerabilities, and maintained
his innocence at sentencing. Pointing to Hecker’s sentence does little for Xiong. See
id. (“The sentencing practices of one district court are not a reference point for other
courts.”).
Xiong disputes the court’s application of a vulnerable victim enhancement for
the first time in his reply brief. We generally do not address arguments initially raised
in reply briefs, though we may if the new arguments supplement those raised in the
initial brief. See Jones v. Aetna Life Ins. Co., 856 F.3d 541, 549 (8th Cir. 2017).
Xiong’s argument supplements none initially raised, and we thus decline to consider
it.
The judgment is affirmed.
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