Metropolitan News-Enterprise


Friday, December 8, 2017


Page 3


Ninth Circuit:

Prosecutions Weren’t Dropped Based on Factual Innocence

Opinion: Men Charged With Promoting Anti-Communist Insurrection in Laos in Violation Of Neutrality Act Have No Cause of Action for Malicious Prosecution


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the dismissal of an action alleging the malicious prosecution of three Laotian Americans who were charged along with nine others of violating the Neutrality Act by raising funds, in the thousands of dollars, to help finance a well-armed anti-Communist insurrection in Laos.

Charges, initially brought in 2007, were eventually dropped by the government on Jan. 10, 2011, “in the interests of justice.”

The lawsuit against the government was brought on May 7, 2012, by the three former criminal defendants and their wives on various theories, eventually pared by the courts to one. In a memorandum opinion filed Wednesday, the Ninth Circuit affirmed the dismissal by Judge Morrison C. England Jr. of the Eastern District of California of the cause of action for malicious prosecution, holding that the plaintiffs failed to rebut evidence that the prosecution of them was halted for reasons other than their factual innocence.

Nhia Kao Vang, Chue Hue Vang, and David Vang, among others, were arrested by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives based on information from a special agent, Steven Decker, who infiltrated the anti-Communist league of Laotian expatriates.

Most prominent among the 10 initially charged was Vang Pao, 77, who had been a major general in Laos prior to the Communist takeover in 1975. He fled to the U.S. that year and became a leader in the Hmong American community—which was outraged over the prosecution of him on what were perceived as fabricated charges.

On Sept. 18, 2009, charges against him were dropped when a superseding indictment was filed eliminating him as a defendant, but including the others indicted in 2007, and adding two others.

The dismissal of criminal charges against all defendants came in 2011.

Lead Plaintiff’s Death

Wednesday’s Ninth Circuit opinion does not explicitly state that the lead plaintiff, Nhia Kao Vang, had died, but indicated that inferentially by saying:

“The motion to substitute Chao Xiong for Plaintiff Nhia Khao Vang is denied without prejudice because Plaintiffs failed to comply with the requirements of §377.32 of the California Code of Civil Procedure.”

Section §377.32 spells out the procedures for carrying on an action following the plaintiff’s death.

A Vang family website says:

“Nhia Kao was imprisoned for one month and nine days. During the trials, the Hmong community united and rallied to support the 12 defendants. The trial lasted for 3 years, 7 months, and 6 days. The case was finally dismissed by U.S. Attorney [Lawrence G.] Brown [of the Eastern District of California] on January 10, 2011; after General Vang Pao had already passed away. The Federal Courts and FBI had no factual evidence and falsely accused the 12 defendants.

“Nhia Kao was innocent.”

Key Question

Had the government dismissed on that basis, a cause of action would lie for malicious prosecution, according to Wednesday’s opinion and earlier ones in the case—or, in language the opinions quote, no such action would lie where dismissal of criminal proceedings against a defendant was for reasons “not inconsistent with his guilt.”

On April 8, 2013, England dismissed all causes of action. With respect to malicious prosecution, he said:

“As to the charges that were dismissed ‘in the interests of justice,’ Plaintiffs have alleged no facts plausibly suggesting that the dismissal of these charges reflected the opinion of the United States Attorneys or the Court that the action lacked merit….Plaintiffs have therefore failed to state a claim for malicious prosecution in violation of the Fifth Amendment.”

Dismissal Reversed

The Ninth Circuit on June 12, 2015 ordered reinstatement of the malicious prosecution against the government and Decker. A memorandum opinion said:

“The allegations of misconduct and the subsequent motion of the United States to dismiss the prosecution in the interests of justice shifted the burden to the Defendants to show that the proceedings did not terminate as a result of Plaintiffs’ innocence….Defendants cannot simply hide behind the phrase ‘in the interests of justice’ to prevent Plaintiffs from pursuing their malicious prosecution claims. Because the district court did not shift the burden to Defendants, we reverse the district court’s judgment on the malicious prosecution claims….”

Back in the district court, England again dismissed the cause of action. This time, the government supplied a declaration from the then-U.S. attorney for the Eastern District, Benjamin B. Wagner (now in private law practice), spelling out reasons for the dismissals.

Reasons Stated

The judge’s order recites:

 “…Wagner avers that although there was both probable cause and sufficient evidence to prosecute Plaintiffs, the decision to dismiss the charges was based on a ‘cost-benefit analysis’…On the ‘cost’ side, Wagner identifies the following considerations: (1) a series of adverse rulings suggested that the presiding judge was ‘markedly hostile to the government’s case’; (2) the presiding judge scheduled up to two weeks of evidentiary hearings related to Plaintiffs’ motions to dismiss and motions to suppress evidence; (3) an undercover agent that was ‘a critical witness for the prosecution’ had never before testified in a contested court hearing or trial; (4) prosecutors and agents had violated the terms of a search warrant, an error that ‘created a risk of suppression’ of evidence; (5) the government ‘faced a fiercely contested trial against numerous defendants and considerable litigation on evidentiary issues’; and (6) the prosecution would have required the efforts, over the course of several years, of three Assistant United States Attorneys from the Eastern District of California, two trial attorneys from the Department of Justice’s National Security Division, and several agents and translators….Potential ‘benefits,’ on the other hand, were uncertain because Wagner suspected that even if the government prevailed at trial, ‘the court was very likely to impose minimal sentences on convicted defendants.’…Wagner thus concluded that ‘the benefits of further prosecution were outweighed by the costs and risks,’ and he therefore recommended the dismissal of the criminal prosecution.”

England remarked:

“The Court is convinced that the Government did not dismiss the criminal prosecution because Plaintiffs were innocent.”

Ninth Circuit Agrees

Affirming, the Ninth Circuit said Wednesday:

“The government presented evidence that it dismissed the criminal charges for reasons not inconsistent with Plaintiffs’ guilt, and Plaintiffs did not offer any contrary evidence that would create a genuine dispute of material fact on this issue….The declaration of U.S. Attorney Wagner provided evidence that the government moved to dismiss the criminal charges for reasons not inconsistent with Plaintiffs’ guilt.”

The judges said England did not abuse his discretion in declining to grant discovery, declaring:

Even assuming the belated timing of Plaintiffs’ request should be forgiven due to the unusual procedural posture of these proceedings. Plaintiffs did not explain in their filing how the discovery they requested might be relevant. The only issue before the court was whether the government moved to dismiss the criminal charges against Plaintiffs for reasons not inconsistent with their guilt. Plaintiffs did not explain to the district court or to us how the requested discovery would rebut Wagner’s declaration.”

The case is Vang v. Decker, No. 16-15443.


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