United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
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).
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).
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.
Facts and Procedural History
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.
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). 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
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. (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.
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. 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. 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.
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).
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.
Summary of Movant's Objections
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
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
court will first address each factual objection in turn.
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.
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.
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.
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.
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.
Movant's Factual Objections
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.
Filing the grant proposal
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).
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. (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.
the court finds Mr. Thompson submitted the grant proposal
listing Dr. Li as the PI. The objection is overruled.
SDSU & Dr. Li's visa
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 ...