ass in apology bridge sayings wrong asserts that prior to and during his trial his fifth and sixth amendment rights were violated it is appellants contention that these constitutional infringements flow or am or merge into each other the end result is that denies him his right to a fair trial however i recognize that this court has requested that we limit our arguments to those issues presented in sections two through five in section two of apologists brief the appellate argues that direct questioning of appellant by the district court regarding his available defenses violated his fifth amendment right against self district court judges had ordered that if the appellate was asserting a public authority defense was required to make a profit or consistent with federal criminal procedure twelve point three to establish a prima fascia case of public authority on the first day of trial the district court after having extended the deadline on a number of occasions reiterated the need for a proffer specifically stating idea proffered and then trial counsel states that he wants to call you a poly himself to make the proffer while the trial judge says to visit this attorney that's a little unusual now the court further stated i was hoping that you would be prepared to do this today and france attorney continues with his statement that he the appellant will be making the proffer and testifying based on his belief that what he was doing was actually legal and within the laws of the united states and international law and yet simultaneously that is the same defense attorney who is also stating there is no public authority seemingly exasperated the court states to counsel i need to know sir right now whether you are asserting a public authority defense trial counsel permits his client to engage in this colloquium between the court and his unprotected client making the request an unordered proffer but through the defendant's own testimony jury jury not present that's correct none of this relate to the jury right jury was not present the real problems are proffered right absence of a proffer thank you over the next six pages your honor the opponent is now being examined in question by the court without first having waived his rights remain silent i know one of the assist attorneys recognize the problem and stated very matter of fact we my concern here is with the defendant's fifth amendment right i don't believe he's gone through the necessary steps to waive that right the final question that i think is dispositive were  critical is when the court's examining misters wrong without a waiver of rights over those six transcript pages you finally concluded with nobody from the u s government or the united states ever actually authorized the new among country setting that aside what's the alleged error here by the district court the more specific area other than the fifth amendment violation i mean if you can imagine if the defendant was getting ready to testify and prior to the jury coming out did not have a proper waiver rights that would be a violation of the fifth amendment and i think the assistant u s attorney recognize that and stop the proceedings and after six transcript pages where in effect he's waving his as the authors are aware there are three government authority defenses public authority entrapment by stop on innocent intent appellate did not need actual authority to present an entrapment biased novel defense nor innocent  stoppel has been held to apply one official shirts of the fan it at certain conduct is legal and defendant reasonably relies on the advice and continues or initiates the conduct the operative word there i believe is continues and i would argue that the proffer that should have been made is that the right of return here for the month people was something in that they had been promised that they would guarantee that if they were displaced they could return to their homeland so what specific evidence of government authority were you present while with your client present prevented from presenting he was barred from presenting any public authority defense and because of the fact that that of the france attorney was essentially stating on the eve of trial we're not asserting any public authority to france and were leaning toward innocently intent there were no witnesses available it was all going to be presented through here so you have did not have to present evidence of public authority in regards to traveling by a stop or innocent intent when the court is applying that in the in the during the proffer by actually asking the question what was the actual  authorized public authority that is providing you evidence or you have evidence that there was a public authority actually authorizing a new country i would have framed the argument you're out of the question in terms of what the right of return was for the defendant and his people that the mung had been promised that they would have a right of return to their homeland which is guaranteed by international law objected dates back to the magna carter there's articles in the united nations articles of incorporation that state that individuals displaced refugees have a right of return then you have the sort of anecdotal stories and specific stories in regard to general  in communicated by cia officials colonel belair and others that the mom would be taken care of if in fact something went wrong if they were displaced they would be taken care of by the united states they were simply trying monk country it's the right of the this particular monk communally exercising the right to return based on the public authority of not only international law but also the assertions of general vang pao and colonel belair as well as the fact that the continuing operation of raising funds was occurring from one nine hundred eighty one all the way through journalling paos death in two thousand and eleven then you have specific government officials that defense attorney did not call that were with the state department with the white house with the united nations that he had communicated with and of course none of this was introduced or provided because there was no for lawyers what you see there is a specific question before us is more yarn or i see the specific questions before the court there are two questions related to whether the district court erred and i of law about what the defendant would have to show in order to assert a public authority defense and the way that information was communicated to the defendant in other words whether the district court erroneous only precluded the defendant from raising innocent intent and then the other issue there's an argument that that the sentence was substantively unreasonable it was a guideline sentence that the district court imposed and the other argument i think the chording counsel were just focusing on is whether the district court violated the defendant's fifth amendment s and so your honor your honor i think one of the things to really look at at this point is what did the district court actually preclude the defendant from doing at trial because i think it is misstated in the palance brief and at the end of this colloquy that happened and sort of there was this discussion between the parties in the district court had issued an order prior to this coll y sort of outlining the different showings that would need to be made for either a public authority defense a stop by entrapment or innocent intent the district court at the end of the  colloquy simply prohibited the defendant's counsel from raising the public authority defense in cross examination or opening statements and the district court this is that page twenty two of the transcript volume one the district court said specifically you are prohibited from raising the public authority defense now the district court had already clearly inform the defendant if it's innocent and ten you're going to raise there's no showing necessary you can go ahead and argue innocent intent that you didn't mean to  defense than public authority so the district court was not conflating those terms and in terms of i'm sorry it's entrapment biased stoppel your honor the that was never raised by the defendant below the defendant never never indicated that he was going to claim that he was told by someone from the government that his conduct was legal but that that person was  mistaken and that the defendant erroneous lee relied on that information so the only thing the district court said was you can't you can't indicate you can't use questioning on cross examination or in your opening statement and disha that you're asserting that you had public authority and that's very specific so if we move on from there there was no objection at all during any part of the trial to any kind of evidence that the defendant wanted to put in related to his contacts with anyone his advocacy work his  communications with world officials there was a had no point was there a time when there was evidence that was proffered by the defendant where the court precluded that evidence from coming in so to the extent the defendant is claiming that something happened during the trial that precluded him from asserting his defense the defendant also this related issue is whether his right to compulsory process was violated  because he couldn't put in evidence that he wanted to put in the sensually but there was no he never tried to put in evidence of public authority or a stop alibi entrapment defenses during trial there was no objection by the government to anything like that there was no preclusion at all by the district court on that on that matter  the whole well i think the nature of the very fraud in this case sort of begs the question is mr john going to claim public authority i mean that the allegations were that mr zhang was telling his followers in the m community that he was working with the cia with the united nations with the united states government with the white house and they had given him land in southeast asia that he was going to have this country and he was selling memberships in it so that the question about is he going to come in here and say is he going to come into trial and say yes i'm working with you know so i'm told from the cia or from the state department and they've told me that this is what i'm a natural question to come up and the defendant below never objected to you know the government the government requested an initial disc that defendant provide  public authority notice if he was going to assert that defense and then the magistrate order the defendant to provide that disclosure it was never provided so prior to trial the government raised it again to require the defendant to provide notice if he was going to use a public authority defense at no time did the defendant object to the government's request that he provide that notice say that that was inappropriate in fact the defendant seems to agree that he was required to give notice if he was going to assert a public authority to any was it was proper for the district court to require him to make some kind of a proffer prior to trial in order for him to do that so really the only question is was it improper for the court to directly question the defendant i think and and well first of all your honor you know the court does in limited circumstances question defendants and other witnesses from time to time it's not uncommon in our practice for the court to question the defendant at initial appearances sometimes at a detention hearing and the court has recognized that that that can be that that can be proper in this case the defendant asked the court to question him in the defense counsel for purposes of today's proceedings the defendant and his counsel are one in the same and this was the defense counsel inviting the court to question his client now why the defense words to defense counsel use the you so you invited the defense counsel you don't use the word invite he didn't use the word and by he said words do you want the words were he said this is close to not verbatim your honor but he said i think it would be useful for the court to ask mr john directly mr john will you please come up here to the podium and the defense counsel did begin to proffer though he did have some information that he proffered to the court but he didn't have all the necessary information that that the court needed to determine what whether there was going to be a public authority defense there was certainly enough information out there for the court to conduct further inquiry the defendant did list some names of people from the state department and the united states mission to the united nations that he had spoken to and so for the court to want him to describe who are these people and did they give you a thorough he was proper under rule twelve point three and under the case law of the court so the fact that the defense counsel wanted his client to answer those questions directly from the court we don't know why  we don't have a sufficient record to figure that out at this point was it because he wasn't able to get a straight answer from his client was it strategically because he wanted his client to sort of be able to point three would listen to the names of the individuals that you know the defendant was claiming to remember is what twelve point three and then to follow up on that notice them the court can require the defendant to make a prime a facial showing in order to assert this defense and that was what was happened that's sort of the next step after and that's typically done outside the presence of a jury that's correct your honor that's sort of an inquiry about can you it's it's a generous it's a generous standard basically for the person to proffer here's basically what i'm going to say and if the if there's any scenario by which that could the jury could believe that the person was authorized than they to be raised if somebody was you know making a drug sale for example and claimed to be a government informant and so clearly they're doing something illegal but the defense would be the da was monitoring me and i was doing this under their authority so again it was unusual but the concern of the government based on the defendant's conduct was that he would be  defense was would you summarize who you are you in this in intent defense i would summarize his defense as based on what i have learned from different advocates and different people throughout my career i thought i was doing the right thing to get a country to i did audits was i thought i could do this and it was a legitimate fundraising effort basically what i thought was a legitimate effort to get a country set up basically your honor that he didn't intend to mislead people into thinking that he actually had gotten a country that he was trying to advocate and that that was based on conversations he had had with the different individuals in exact point his he did have an innocent intent instruction i believe but i'm not sure was an element of the films from that's correct and as the court explain in its order prior to trial if he's trying to assert an instant defendant innocent intent he doesn't need to make a showing of anything prior to trial i mean that just negates the mens rea it's not a public authority defends it just sort of sounds like one initially but it's not any there was no requirements on him to assert that defense and that's what he did a search throughout the trial throughout the you know witnesses that were called in his behalf case where an individual simply relying on a t f forms or proles for traffic that this is a case where if it had been briefed properly it would have described the mung believe that they have a right of return to go back to laos to their homeland not to create a new country let's return to their homeland to return to the highlands based on promises that were made to them by general vang pao colonel bill bla cia officials but that's not that's only half of it the other half of it is that this is a a tradition that is recognized in the magna carta it's recognized that i've mentioned articles it's an recognise in many treaties that the right of return is is something that a displaced people have a right especially these and of indigent indigenous among of southeast asia who have been persecuted and and pushed around and were trying to help the united states fight communism we've seen this and other situations where a cuban refugee went back to try to go back to cuba in one thousand nine hundred eighty one we've had many incidents of individuals trying to assert a public authority but not in this instance where you're being prosecuted even in general vang pao himself was was indicted in and in federal court in sacramento and i believe it was two thousand seven in a case that has some similarities the difference was that the similarities were that the general they power was trying to raise an army and guns and money had a twenty million dollar budget and was trying to return to the homeland and in the case was eventually dismissed saying jong was trying to politically do something for the monk people the monk people that wanted to return to their home that they felt they had a right to return again based on the promises by certain officials and also he also talked to certain officials with the white house the state department united nations none of those people were caught and again and the first time i got involved with this case and talked to a former law professor of constitutional law who so that's a toxic case you should be involved in it and the reason i think in some respects it is is because there are so many different viewpoints i was recently involved in the the appointment of the first man woman judge here in minnesota a tremendous honor for this young woman and and for the monk community and there are moms who have no interest whatsoever of returning to the homeland none whatsoever many of the people that i think are here today would probably suggest we would like to return to the homeland one point three million approximately dollars are still in the coffers of the united states government and many of the mom would probably say take that money and don't return it to us but use it for an appropriate effort to get back to laos the afterwards the general vang pao ma where since nine hundred eighty one for approximately i think it was thirty three some odd years he was raising money fifty sixty thousand dollars per home and individuals were were providing that money with the hopes of returning to the homeland the government has stated that there was something like four hundred eighty four individuals who were were victims of this particular crime and yet it's sentencing only thirty one were were were mentioned by a police officer who was part of the vang clan who stated those were the individuals that have been have sgt exclaimed vulnerabilities the sentencing here of eighty seven months i think should be looked at there there is there should be no should be compelled to incriminate himself or to waive his defenses the defendant or appellant mr mr john was questioned by the court he was they actually asked what actually authorized you to create a new country it framed the crate question improperly it created a deposition for the government when he took the stand it was a situation where he was forced to testify without properly being waived waiving his right to testify or to assert his right