United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-3283

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Seng Xiong

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the District of Minnesota - St. Paul

____________

Submitted: October 16, 2018

Filed: February 1, 2019 

____________

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 sentenced Xiong to 87 months’ imprisonment. 1

Xiong argues that the court erred in disallowing him from presenting affirmative

The Honorable Susan Richard Nelson, United States District Judge for the

1

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 frommany in the Hmong communitywho 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

-2-
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

-3-
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

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

-4-
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-inchief, 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.

-5-
At Xiong’s request, new counsel was appointed to represent him atsentencing. 

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

-6-
the intent element of the crimes. After the pretrial hearing, the district court barred

Xiong fromraising 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. Xiong argues that the court’s incorrect legal

2

standard barred him from mentioning government contacts and raising perceived

government authority defenses at trial. “A district court abuses its discretion if it 3

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). 

Xiong concedes that the court correctly explained these requirements in its

2

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. 

The court allowed Xiong to present an innocent intent defense without any

3

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. 

-7-
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. See United States 4

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 selfOur sister circuits to consider the issue unanimously require actual authority. 

4

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). 

-8-
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 isfavorable 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 ofsuch 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). 

-9-
C. Sentencing 

Xiong claims that the district court’s sentence was substantively unreasonable

because the court gave inadequate weight to the sentencing goal ofreducing 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 atsentencing. Pointing to Hecker’s sentence doeslittle 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 argumentsinitially 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.

______________________________

-10-