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United States v. Xiong

United States Court of Appeals, Eighth Circuit

February 1, 2019

United States of America Plaintiff- Appellee
Seng Xiong Defendant-Appellant

          Submitted: October 16, 2018

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

          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 court[1] sentenced Xiong to 87 months' imprisonment. Xiong argues that the court erred in disallowing him from presenting affirmative 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 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 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 casein-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 ...

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