By Denny Walsh
Friday, Nov. 12, 2010
Saying that prosecutors had not included enough information in parts of the indictment to enable the men to defend themselves and, in other parts, did not adequately back up the charges, U.S. District Judge Frank C. Damrell Jr. dismissed two counts of the five-count indictment and significant sections of the omnibus conspiracy count.
The indictment levels the charges at 11 Hmong Americans with deep roots in Laos and a retired Army lieutenant colonel from Woodland who did two tours in the Vietnam War and is a graduate of West Point. They are accused of attempting to buy weapons from an undercover firearms agent posing as a black market dealer in order to arm Hmong and other insurgents in Laos.
Damrell tossed out a count that was a centerpiece of the case — the charge that the defendants outright violated the federal Neutrality Act by plotting on domestic soil a violent coup against a foreign nation with which the U.S. is at peace.
The judge said he is “troubled” that prosecutors have “time after time asserted a different hierarchy of the military enterprise and the evolving theory of its operation. This ambiguity is exacerbated by the lack of an identifiable military enterprise or expedition.”
He pointed out that, at the bail hearing more than three years ago, prosecutors contended the criminal enterprise was led by iconic Hmong Maj. Gen. Vang Pao, who fought communists in Southeast Asia for years as leader of a CIA-sponsored guerrilla force before coming to the U.S. in 1975. when his native Laos and South Vietnam fell. However, the judge noted, when the first indictment was replaced by a new one, prosecutors dropped their charges against Vang Pao.
At that point, Col. Youa True Vang of Sanger was “the only identified high-ranking Hmong military officer among the remaining defendants,” Damrell said.
Subsequently, Youa True Vang, who served under Vang Pao in the CIA’s “secret war” against North Vietnam, has agreed to a diversion program that will lead to prosecutors dropping the charges against him next spring, the judge said.
In addition to Youa True Vang, there were four other Valley defendants, all from Fresno: David Vang, Hue Vang, Chong Vang Thao and Seng Vue.
Damrell said that at oral arguments on some defense motions on Oct. 15, “the government newly asserted that … Lo Cha Thao was now the ‘leader’ of the military enterprise.” Defense lawyers told him “this was the first time they were apprised of this theory,” the judge said. Finally, in supplemental papers filed after arguments, prosecutors say the “expedition was comprised of the ‘insurgents in Laos.’ ”
The Neutrality Act “requires more than the expression of ‘feelings of deep-rooted hostility,’ more than imprudence or indiscretion in words of actions, and more than an effort ‘to excite the zeal of their countrymen.’ Significantly, the act requires more than attempted purchase or transportation of arms and ammunition to a foreign country,” Damrell declared.
The indictment simply does not definitively define how each defendant is supposed to have violated the act, he said.
The judge left intact the allegation in the conspiracy count that the defendants plotted to violate the act. It says the defendants, in meetings and conversations, discussed acquiring and transferring arms, mercenaries and money to insurgents in Laos for the purpose of toppling the government by force, he noted.
Damrell tossed out the part of the conspiracy count that charges the defendants with planning the unlawful transfer or possession of a machine gun. The statute is silent on whether it applies to foreign territory and, therefore, is presumed to apply only domestically, he said.
Next, he threw out the part of the conspiracy count that charges the men with planning to possess firearms not registered to them in the national register, or to transport unregistered firearms in interstate commerce. Here again, Damrell said, the statute is not specifically applicable to foreign territory.
He then dismissed that part of the conspiracy count charging the men with plotting to export defense articles and services without a license. “Despite recounting approximately 38 phone calls, meetings and negotiations” the indictment never reveals when any such arrangements took place, or which defendants made the arrangements, the judge found.
The judge threw out the entire count that charges the defendants conspired to receive and transport explosives in interstate and foreign commerce. The statute is clear, he said, that the crime must be alleged to have taken place in the U.S.