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Thompson v. United States

United States District Court, D. South Dakota, Western Division

May 29, 2019

SCOTT THOMPSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Mr. Scott Thompson, appearing pro se, moves the court to overturn his criminal conviction under 28 U.S.C. § 2255. (Dockets 1 & 36). Following a ten-day jury trial, Mr. Thompson was convicted of two counts of making a false claim to a federal agency, two counts of submitting a false document to a federal agency, two counts of wire fraud, and one count of receiving stolen government money. (Dockets 213 & 218). The convictions stem from Mr. Thompson's improper representations to the National Science Foundation (“NSF”) in a grant application and report and his improper use of NSF grant funding. He now claims his trial was marred by ineffective assistance of counsel, false testimony, and prosecutorial misconduct. (Docket 64). He also claims he is actually innocent of the crimes for which he was convicted. Id. The government seeks to dismiss Mr. Thompson's § 2255 motion. (Docket 75).

         Mr. Thompson's motion was referred to Magistrate Judge Veronica L. Duffy pursuant to the court's standing order of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a report and recommendation (“R&R”). After extensive briefing, the magistrate judge issued an R&R concluding Mr. Thompson's motion should be denied in full without an evidentiary hearing. (Docket 86). Mr. Thompson timely objected to the R&R. (Docket 93).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. For the reasons given below, the court overrules Mr. Thompson's objections to the R&R and adopts that thorough document in full. The court denies Mr. Thompson's requests for discovery and an evidentiary hearing. The court denies Mr. Thompson's § 2255 motion.

         ANALYSIS

         I. Facts and Procedural History

         Mr. Thompson does not specifically object to the factual findings made by the magistrate judge. However, he presents a short factual recitation that differs in material respects from the magistrate judge's findings. (Docket 93 at pp. 2-4). Given Mr. Thompson's pro se status, the court will construe his factual recitation as objections to the magistrate judge's findings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed[.]”) (internal quotation omitted). The court denies these factual objections below. See infra Section III.

         The magistrate judge exhaustively summarized the complex testimony presented at Mr. Thompson's jury trial. (Docket 86 at pp. 5-69). The summary is adopted in full. In its order denying Mr. Thompson's motions for acquittal and a new trial, the court also made factual findings of its own regarding the trial testimony. (CR. Docket 279 at pp. 3-8).[1] Given the extensive factual summary presented in the R&R and the order denying defendant's post-trial motions, the court will not repeat the facts here. As necessary, the court will recite facts from those sources pertinent to Mr. Thompson's objections.

         A brief explanation of the procedural history of this case is necessary to note the pleadings the court considered in reaching its decision. Mr. Thompson first filed his § 2255 motion on May 27, 2016. (Docket 1). Following four extensions, Mr. Thompson filed an amended motion and a 231-page brief in support of the motion.[2] (Dockets 36 & 37). The government moved to require Mr. Thompson to comply with the local rules governing brief length. (Docket 54). The magistrate judge granted that motion. (Docket 55). Mr. Thompson then petitioned the magistrate judge three times to file an overlength brief, whittling the proposed page number down each time. (Dockets 56, 58 & 62). The magistrate judge permitted Mr. Thompson to file a 41-page brief. (Dockets 63 & 64). The court only considers that brief.

         In support of his amended motion, Mr. Thompson also filed, by the magistrate judge's count, 2, 606 pages of exhibits. (Docket 86 at p. 78) (referencing Dockets 38-53). The magistrate judge did not indicate whether she considered any of Mr. Thompson's voluminous exhibits.[3] The Rules Governing Section 2255 Proceedings state “[if] the motion is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the motion. The judge may require that these materials be authenticated.” Governing Rule 7(a) (emphasis added). Neither the magistrate judge nor this court permitted Mr. Thompson to supplement the existing record.[4] Finally, the existing record is itself most detailed, including more than 1, 200 pages of trial transcript, hundreds of trial exhibits, and hundreds more pages of briefing and orders regarding Mr. Thompson's 2255 motion. The court has all the information it needs to resolve this matter without delving into Mr. Thompson's exhibits. Accordingly, the court does not consider Mr. Thompson's exhibits, which were neither submitted with the court's permission nor authenticated.

         The government requested and was granted a waiver of Mr. Thompson's attorney-client privilege regarding the attorney who represented him at trial, Mr. Brett Poppen. (Dockets 69, 71 & 73). Mr. Poppen filed an affidavit responding to Mr. Thompson's ineffective assistance claims. (Docket 77). The government referred to Mr. Poppen's affidavit in its motion to dismiss. (Docket 76). Mr. Thompson responded to the government's motion to dismiss. (Docket 85).

         Mr. Thompson filed objections to the R&R. (Docket 91). He then filed a document styled as a motion to amend his objections, but which consisted solely of the amended objections with no request or justification for the amendment. (Docket 93). The court nevertheless accepted the amended objections and informed Mr. Thompson it would only consider the amended objections. (Docket 94). The court then declared the matter fully briefed. Id.

         II. Summary of Movant's Objections

         As noted above, the court discerns five factual objections to the R&R from Mr. Thompson's factual recitations. As summarized by the court, those objections contend:

1. Dr. Qiquan Qiao logged into the NSF's website as Dr. Jing Li and submitted a grant proposal on behalf of Isosceles, LLC. (“Isosceles”) listing Dr. Li as the grant's principal investigator (“PI”). (Docket 93 at p. 2).
2. Dr. Qiao told Mr. Thompson South Dakota State University (“SDSU”) would process the paperwork needed for Dr. Li to be employed with Isosceles for purposes of the grant. Id. at p. 3.
3. Dr. Qiao falsely told Mr. Thompson he was required to apply for a certain visa to enable Dr. Li to work for Isosceles. Id.
4. Drs. Qiao and Li prepared the final report required by the NSF following the grant termination and included in that report false statements and plagiarized text. Id.
5. Mr. Thompson certified to the NSF that Dr. Li worked 160 hours on the grant but did not certify those hours were worked specifically on behalf of Isosceles. Id. at p. 4.

         The court will first address each factual objection in turn.

         Mr. Thompson also raised 12 objections to the magistrate judge's legal conclusions. As summarized by the court, those objections argue:

1. Mr. Poppen's representation of Mr. Thompson was ineffective because he did not present evidence Mr. Thompson was not required to obtain any specific visa before hiring Dr. Li. Id. at pp. 6-8.
2. Mr. Poppen's representation was ineffective because he did not hire an expert witness to refute testimony by Dr. Prakesh Balan that NSF rules prohibited Mr. Thompson's use of grant funds. Id. at pp. 9-10.
3. Mr. Poppen's representation was ineffective because he did not fully advise Mr. Thompson of Dr. Dennis Helder's “hostile disposition” toward him before asking him to sign a waiver of conflict based on Mr. Poppen's friendship with Dr. Helder's son. Id. at pp. 11-13.
4. Mr. Poppen's representation was ineffective because he did not properly investigate NSF grant rules and consequently did not present evidence that Mr. Thompson's use of grant funding to pay credit card bills was permissible. Id. at pp. 13-14.
5. Mr. Poppen's representation was ineffective because his “unpreparedness” denied Mr. Thompson his right to testify. Id. at pp. 14-15.
6. Mr. Thompson was not required to obtain any specific visa before hiring Dr. Li. Id. at p. 15.
7. Mr. Thompson did in fact hire Dr. Li. Id. at pp. 16-17.
8. All expenses Mr. Thompson charged to the grant were permitted under NSF rules. Id. at pp. 17-19.
9. Trial testimony regarding Mr. Thompson using Dr. Li's credentials to submit a final report to the NSF improperly broadened the indictment. Id. at p. 19.
10. Mr. Thompson was actually innocent. Id. at pp. 19-21.
11. Prosecutors committed misconduct by presenting false evidence Mr. Thompson was required to obtain a visa before hiring Dr. Li. Id. at pp. 21-22.
12. Mr. Thompson did not procedurally default his non-ineffective assistance claims because the failure to raise his claims on direct appeal were due to Mr. Poppen's incompetence “and/or newly discovered evidence.” Id. at pp. 23-24.

         Many of these legal objections center around two broad themes: whether Mr. Thompson was required to affirmatively obtain a specific visa before hiring Dr. Li to work on the Isosceles grant and whether NSF rules permitted Mr. Thompson to spend the grant funding as he did. Accordingly, the court will address these two questions and the objections hinging on them before turning to the remainder of the legal objections.

         III. Movant's Factual Objections

         In the context of a § 2255 motion, “[a] petitioner's allegations must be accepted as true . . . unless they are contradicted by the record, inherently incredible, merely conclusory, or would not entitle the petitioner to relief.” Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012). Reviewing Mr. Thompson's factual objections under this standard, the court overrules each of them.

         A. Filing the grant proposal

         Defendant asserts Dr. Qiao logged into the NSF's online portal as Dr. Li and submitted the grant proposal on behalf of Isosceles, listing Dr. Li as the PI. (Docket 93 at p. 2). This assertion is belied by trial testimony and exhibits. The proposal shows Mr. Thompson electronically signed the proposal and submitted it on February 25, 2009, as Isosceles' authorized organizational representative. Trial Ex. 1. Dr. Qiao testified at trial he did not file the grant proposal. (CR. Docket 240 at p. 27).[5]

         The jury verdict is equivocal on this factual matter. Mr. Thompson's version of the proposal filing contradicts the jury's verdict of guilty on count 4 of the indictment as it was presented to the jury.[6] (CR. Docket 218 at p. 2). That count charged Mr. Thompson with submitting the proposal and falsely stating in the proposal that Steven Makrinos was the CEO for Isosceles. (CR. Docket 208 at p. 9). However, the jury found Mr. Thompson not guilty on count 7, which charged Mr. Thompson with wire fraud for submitting the grant proposal. (CR. Docket 218 at p. 2). The verdict form does not indicate the jury's reasoning for finding Mr. Thompson not guilty on count 7. Id. Given the jury's guilty verdict on count 4, however, the court deduces the jury's disagreement with the charge was not a factual one based on the question of who submitted the proposal.

         Accordingly, the court finds Mr. Thompson submitted the grant proposal listing Dr. Li as the PI. The objection is overruled.

         B. SDSU & Dr. Li's visa

         Mr. Thompson claims Dr. Qiao told him “SDSU would process the necessary paperwork for [Dr.] Li's employment in connection with the grant.” (Docket 93 at p. 2). This claim is contradicted by the trial record. Dr. Qiao testified Mr. Thompson asked him to arrange for SDSU to obtain a visa allowing Dr. Li to work for Isosceles. See Docket 86 at pp. 27-30 (summarizing trial testimony regarding Mr. Thompson and Dr. Qiao's communications on Dr. Li's visa). Dr. Qiao at first referred Mr. Thompson to SDSU employees knowledgeable ...


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