United States v. Song ZhengUnited States v. Song Zheng
Before: BATCHELDER, NALBANDIAN, and READLER, Circuit Judges
COUNSEL
ON BRIEF: Steven S. Nolder, Columbus, Ohio, for Appellant. Alexis J. Zouhary, UNITED STATES ATTORNEY‘S OFFICE, Cincinnati, Ohio, for Appellee.
NALBANDIAN, Circuit Judge. Song Guo Zheng lied on several applications for National Institute of Health (NIH) funding while employed at some of the country‘s largest universities. Zheng pleaded guilty to fraudulently obtaining this federal funding, but on appeal argues that his trial counsel was ineffective by not seeking a downward variance at sentencing given his immigration status. Generally, however, we decline to review ineffective-assistance claims for the first time on direct appeal because the record is inadequate to establish any error. Seeing no reason to depart from this practice, we DISMISS Zheng‘s ineffective-assistance claim.
I.
Agents from U.S. Customs and Border Patrol confronted Song Guo Zheng after he arrived at the international airport in Anchorage, Alaska carrying a large amount of luggage, several electronic devices, bars of silver, his family‘s expired Chinese passports, and a one-way ticket to China.1 FBI agents questioned Zheng, whom they had been investigating for
On the surface, Zheng had been a successful researcher and professor for years. Born a Chinese citizen, Zheng became a permanent United States resident in 2004. He served as a professor at the University of Southern California for nearly a decade, then at Pennsylvania State University from 2013 to 2019, before The Ohio State University hired him in 2019. During his time at USC, PSU, and OSU, Zheng performed research under federally funded grants from NIH. To receive NIH funding, universities submit detailed applications that must include, among other things, several disclosures. Both during the application process and after receiving an award, funding recipients must disclose to NIH all foreign collaborations, sources of foreign research support, conflicts of interest, and the like.
But as it turns out, this was a problem for Zheng. He had many ties to Chinese organizations and these ties were both financial and information-sharing. To start, take the Chinese Talent Plans (CTP). Zheng became a member of both the CTP Hundred Talents Plan (HTP) and the CTP Thousand Talents Plan (TTP). These programs aim to recruit researchers to share developments with the Chinese government. For instance, in his application for the TTP, Zheng wrote that “biomedical products are basically monopolized by USA, Europe and Japan; the applicant will bring back several innovative products and conduct clinical transformation of the products in hoping to develop China‘s brand in the biomedical area.” (R. 38, PSR at 6, PageID #327.) What‘s more, memberships in HTP and TTP allowed Zheng to set up a clinic at Sun Yat-sen University (SYSU) with funding from the Chinese government. He also joined the Pearl River Talent Plan; this membership included more than three million dollars in funding for Zheng. And Zheng received foreign grants from the National Natural Science Foundation of China (originally under the jurisdiction of China‘s State Council and now managed by China‘s Ministry of Science and Technology) and sought out other funding from ten Chinese biotechnology companies.
Including this information on NIH applications would have been fatal to Zheng‘s funding prospects. So Zheng clouded his ties to China and these organizations. From 2013 to 2019, Zheng repeatedly applied for and was awarded NIH funding. On none of these applications did Zheng disclose his ties to Chinese organizations, his conflicts of interest, or his foreign funding. At one point, Zheng directed an OSU employee to submit an application with false representations to NIH. All told, Zheng‘s fraudulent statements caused PSU and OSU to falsely certify to NIH that Zheng was free from conflicts of interest on eight applications and eight other reports. After all, each of these documents included a certification from Zheng that the statements in them were true. As a result of Zheng‘s fraudulent statements and documents, NIH awarded Zheng two grants totaling $3,919,561.83.
Zheng‘s deception went on for years before anyone caught on. First, in late 2018, PSU confronted Zheng after an internal
All in all, Zheng pleaded guilty to a one-count information charging him with making false statements in violation of
Next the parties touched on the § 3553(a) factors in their respective arguments about the length of the sentence. Here Zheng‘s immigration status came up for the first time.2 The government shared that the parties had discussed the consequences of Zheng‘s immigration status and asked the district court that, if the court decided to sentence Zheng to time served, it tack on at least three days because Immigration and Customs Enforcement was unavailable to pick Zheng up until the next Monday. In the end, the district court sentenced Zheng to 37-months imprisonment, the low-end of his Guidelines range, which was 37 to 46 months. Zheng timely appealed.
II.
On appeal, Zheng argues that his counsel was ineffective by not seeking a downward variance based on Zheng‘s immigration status as a deportable alien. A defendant‘s deportable alien status, as Zheng argues, affects the execution of his sentence. For instance, Zheng points out that deportable aliens populate more secure prison facilities, serve a larger percentage of their sentence in custody, are ineligible for halfway house placement, and cannot take part in some Bureau of Prisons (BOP) programs. See United States v. Ebolum, 72 F.3d 35, 37 (6th Cir. 1995) (noting the Bureau of Prisons’ policies for deportable aliens); see also United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (“[A] downward departure may be appropriate where the defendant‘s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence . . . .“). According to Zheng, his counsel should have raised these points to the district court to receive a shorter sentence.
A.
To prove a Sixth Amendment violation under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must make two showings.
Here, Zheng brings his claim of ineffective assistance of counsel for the first time on direct appeal. “We typically decline to address claims of ineffective assistance on direct appeal and instead require defendants to file a postconviction motion to vacate their sentence pursuant to
So before analyzing Zheng‘s claim under Strickland‘s two-prong analysis, we must first determine whether the record here is adequate to assess Zheng‘s claim. Most of Zheng‘s briefing highlights the difference between how BOP treats deportable aliens and other inmates. But absent from the briefing is any evidence of counsel‘s deficiency in representing Zheng. Nothing in our record shows, for example, counsel‘s reasons for making certain strategic decisions or why he advanced one argument over another. Thus, this is not the kind of case that falls within the “narrow exception” to our general practice.
B.
Perhaps realizing the record here cannot support his claim under our caselaw, Zheng looks elsewhere—to a recent opinion from the D.C. Circuit. In United States v. Thomas, 999 F.3d 723 (D.C. Cir. 2021), the D.C. Circuit (on direct appeal), after determining that trial counsel‘s performance was unreasonable, remanded the defendant‘s immigration-related ineffective-assistance claim for an evidentiary hearing on prejudice. Id. at 735–38. Thomas‘s claim was like Zheng‘s.
The D.C. Circuit has recognized specifically that deportable aliens may be eligible for a downward variance called a Smith variance. See id. at 736. Smith allows for a downward variance solely because deportable aliens face the prospect of objectively more severe prison conditions. 27 F.3d at 650. And as Zheng emphasizes, in Thomas the court found that the “record conclusively show[ed] Thomas‘s counsel made unprofessional errors in failing to seek a downward variance due to [his] status as a deportable alien.” Id. at 736. Zheng argues that “consistent with the remedy announced in Thomas” we should remand his claim so the district court may consider his argument. (Appellant Br. at 33–34.)
But Thomas is different from Zheng‘s case for at least two reasons. First, we don‘t have a case like Smith in this circuit.
By recognizing two potential implications for a defendant‘s immigration status, Petrus implicitly rejected Smith‘s more absolutist approach. That being the case, Petrus hurts Zheng‘s case. By recognizing that a sentencing court has an avenue for either an upward or downward variance, we have presented an attorney with a classic strategic choice under Strickland.
Second, Thomas confronted a different factual scenario. In Thomas the record “conclusively” showed that counsel “made unprofessional errors” by not seeking a downward variance because of Thomas‘s deportable alien status. 999 F.3d at 736.3 Thomas‘s Presentence Report explicitly mentioned the potential sentencing effects of Thomas‘s deportable alien status.4 Id. Moreover, the district court had asked counsel directly about Smith; counsel said he would address the issue but then failed to do so. Id. at 737. That record allowed the appellate court to conclude that the decision not to raise Smith was unreasonable, and not a strategic choice. Here, we don‘t have similar record evidence to decide whether Zheng‘s counsel made an error or a strategic choice. If anything, given our prior statements, we do have a possible explanation for why counsel may not have raised the issue—a potential upward variance. A
III.
This is neither the right tribunal nor the right time for Zheng‘s claim. See Guinan v. United States, 6 F.3d 468, 474 (7th Cir. 1993) (Easterbrook, J., concurring). For the above reasons, we decline to address Zheng‘s claim of ineffective assistance without a properly developed record.