Defense: Agent acted unconstitutionally in Lao plot case

An undercover firearms agent played unconstitutional mind games with Hmong Americans charged with plotting to overthrow the government of Laos, defense lawyers claim in Sacramento federal court papers.

They want a judge to dismiss the case against their clients "for outrageous government conduct," and they point to the prosecutors' own evidence as proof of constitutionally unacceptable mental coercion.

That evidence, they state in the motion to dismiss, shows the agent exploited the defendants' outrage and frustration at the Lao government's reported policy of genocide against the Hmong.

The agent's assurances that the U.S. government would back a military offensive against Laos also represented coercion banned by the Constitution, the motion states.

Eleven Hmong Americans and a retired Army lieutenant colonel from Woodland are accused in a multicount grand jury indictment of violating an array of federal laws, including the Neutrality Act, which forbids a military offensive from American soil against a nation at peace with the United States.

The charges grew out of a sting operation between January and June of 2007 that featured an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives posing as a weapons merchant hawking his wares to the defendants.

Defense lawyers, led by renowned San Francisco attorney James Brosnahan, renewed their outrageous conduct motion last week. They brought a similar motion more than a year ago, but U.S. District Judge Frank C. Damrell Jr. declined to rule on it because all the government's evidence had not been turned over to the defense.

Now, the defense lawyers are asking for an evidentiary hearing on the motion, which is one in a series they have filed this month. Prosecutors will respond in writing, and Damrell is expected to hear oral arguments in the fall.

After Laos and South Vietnam fell to the communists, an estimated 250,000 Hmong came to the United States, including some who fought in a "secret war" under the CIA's direction against the communists. Many relatives and friends were among the Hmong left behind.

It is a source of disillusionment and anger among Hmong Americans that the United States has done nothing to alleviate the plight of the Hmong in Laos, despite repeated reports by respected human rights organizations that they are victims of murder, rape and torture by the communist regime.

The defense motion cites two categories of law enforcement conduct that are recognized by legal precedent as violations of the Constitution's due process guarantee:

• Fabrication of the crime to secure convictions.

• Physical or mental coercion to facilitate the crime.

"Both types of outrageous government conduct occurred here," the motion declares.

With respect to coercion, the motion says, the undercover agent heard firsthand accounts of how Lao soldiers had raped eight Hmong girls, ages 11 to 16; how the Lao government was spraying a toxic chemical called "yellow rain" on Hmong villagers; and how family members of some of the defendants had been killed by the communist military.

In response to these accounts, the agent "stoked and exploited the defendants' outrage and frustration, comparing Laos' genocidal campaign … to 'the Germans' ' final solution,' and assured certain defendants that the United Nations was 'not going to do anything,' " the motion says. "The agent then offered to provide more powerful weapons. For example, it was the ATF agent who suggested Stinger missiles after he was told about the yellow rain.

"It was only through the agent's manipulation, pressure, and assurances that the government was able to transform an initial desire to help the Hmong defend themselves into the overblown, government-manufactured conspiracy with which the government now charges the defendants."

The government ignored statements indicating a desire for nonviolence, and the agent implied knowledge that the United States would support an armed invasion of Laos, the motion alleges. He provided expertise for the alleged plot and pressed the defendants to hold a planning meeting and produce a written operational plan, the motion alleges.

"The government knew that defendants were utterly incapable of financing the alleged scheme and, according to the government's evidence, ultimately raised less than a quarter of a percent of the alleged total budget," the motion says.

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