United States District Court, E.D. Virginia, Alexandria Division
CLAUDE M. HILTON, District Judge.
This case is before the Court on the Petitioner James Wilbur Fondren's ("Petitioner") Motion To Vacate, Set Aside And/Or Correct His Sentence pursuant to 28 U.S.C. § 2255.
The Petitioner retired from active duty in the United States Air Force in May 1996 with the rank of Lieutenant Colonel. In early 1998, the Petitioner sought to capitalize on his Department of Defense ("DoD") connections and established a consulting business, Strategy, Inc. His only client was Tai Shen Kuo ("Kuo"), an entrepreneur the Petitioner first met while on active duty with the Pacific Command ("PACOM"). Upon his retirement from the Air Force, contacted Kuo about possible business opportunities. The Petitioner was aware that Kuo had close relationships with various officials from the Taiwan Ministry of Defense and with government representatives in the People's Republic of China ("PRC"), specifically Lin Hong.
Kuo met Lin in early 1990, and Hong began to slowly cultivate Kuo as a source of information in the United States. Hong was particularly interested in any contacts Kuo had within the United States working in political or military positions. When Petitioner contacted Kuo in connection with his fledgling consulting business, Kuo introduced him to Lin.
Eventually, Lin tasked Kuo to get the Petitioner to write opinion papers on various topics selected by Lin. The Petitioner knew that Hong was well-connected to the Chinese government and that his ideas would be passed along to the Military Committee, the PRC equivalent to the Joint Chiefs of Staff. Lin also tasked Kuo with obtaining DoD documents from the Petitioner, including sensitive draft publications not yet available to the public.
The Petitioner provided Kuo with information and documents, including sensitive information and drafts of government documents. Petitioner made it clear to Kuo that he expected to be paid for his efforts, and Kuo paid him, depending upon the sensitivity of the information or document the Petitioner provided.
In August 2001, the Petitioner returned to government service and began working in a civilian capacity at the Pentagon as Deputy Director of PACOM's Washington Liaison Office. At PACOM, the Petitioner held a Top Secret security clearance and had access to a classified computer network with classified documents from a variety of government agencies.
After returning to the Pentagon, the Petitioner no longer had direct contact with Lin, though he continued his consulting arrangement with Kuo, and Kuo continued to pay the Petitioner for his opinion papers. The Petitioner required that he be paid in cash and did not report the income on his federal income tax returns. In return, the opinion papers the Petitioner provided to Kuo contained sensitive information that Petitioner obtained through his DoD position and connections.
Acting at Lin's direction, Kuo mislead the Petitioner into believing that Kuo was now collecting DoD information at the direction of a Taiwanese general. Lin directed Kuo to task the Petitioner to write papers on specific military and political subjects and to obtain internal draft government documents. Kuo passed Petitioner's papers and documents along to Hong. Depending on the sensitivity of the information or document, Kuo paid the Petitioner $700 to $1, 200 for an opinion paper and even more for a draft publication.
On August 10, 2007, FBI agents conducted a ruse interview of the Petitioner in an effort to evaluate the nature of his relationship with Kuo. At the outset of the interview, the FBI advised the Petitioner that the nature of the interview was sensitive and confidential and that it was a national security matter. He was asked not to discuss it outside of the room. However, two days after the FBI interview, the Petitioner sent Kuo an email in which he told Kuo of the visit by two FBI guys who said that they were from Counter Intelligence. During the interview, the Petitioner brought up Kuo's name and told the agents all about Kuo and his business contacts in Taiwan and China, but he never told them that he was writing papers for Kuo or that he was providing Kuo with DoD publications and documents.
The Petitioner's supply of documents and classified information continued after the FBI visits. On September 22, 2007, Kuo asked Petitioner to write more papers, including one on bilateral meetings between PACOM and Chinese counterparts. In response, the Petitioner accessed a classified PACOM report, dated October 19, 2007, and incorporated classified information into an opinion paper that he wrote and emailed to Kuo from his home on November 3, 2007. In Petitioner's subsequent trial, Rear Admiral Michael S. Rogers, Director of Intelligence for the Joint Chiefs of Staff, testified that the information that Petitioner copied from the PACOM report into his opinion paper was classified, and remained classified on November 3, 2007, when the Petitioner sent it to Kuo, because it went to the specifics in advance of a particular agenda.
The Petitioner continued to supply Kuo with sensitive and protected information after November 2007. On February 11, 2008, FBI agents arrested Kuo at the Petitioner's residence, where Kuo was staying as a guest. On the day of Kuo's arrest, FBI agents interviewed Petitioner at the Pentagon. The Petitioner made a number of materially false statements pertaining to his involvement in providing Kuo with classified information. Petitioner falsely told the agents that everything he had written for Kuo in his opinion papers had been based on information from press and media reports and from his experience; the Petitioner also stated that he was sure that he had never included any classified information in any of the papers he had written for Kuo. In addition, the Petitioner also falsely told the agents that he had not given Kuo a draft DoD document entitled "The National Military Strategy of the United States of America 2008, Version 5, " which the FBI had earlier found in Kuo's possession when he was arrested in the Petitioner's house.
On August 27, 2009, a federal grand jury in Alexandria, Virginia, returned an eight-count Superseding Indictment charging the Petitioner with Conspiracy To Act As An Unregistered Agent Of A Foreign Government, (18 U.S.C. § 951) and To Commit Honest Services Wire Fraud (18 U.S.C. §§ 1343 & 1346), in violation of 18 U.S.C. § 371 (Count 1); Aiding And Abetting An Agent Of A Foreign Government, in violation of 18 U.S.C. §§ 2 and 951 (Count 2); Unlawful Communication Of Classified Information By A Government Employee, in violation of 50 U.S.C.§ 783(a) (Counts 3 through 5); and False Statements to agents of the FBI, in violation of 18 U.S.C. § 1001 (Counts 6 through 8).
On September 21, 2009, a jury trial commenced. On September 25, 2009, the jury returned verdicts finding the Petitioner guilty on Count 5 (Unlawful Communication Of Classified Information By A Government Employee), as well as Counts 6 and 8 (False Statements). The jury acquitted the Petitioner on Counts 3, 4, and 7, and this Court granted the Petitioner's Motion For Judgment Of Acquittal with respect to Counts 1 and 2 of the Superceding Indictment.
On January 22, 2010, this Court sentenced the Petitioner to a term of thirty-six (36) months imprisonment on each of Counts 5, 6 and 8 to run concurrently and followed by two (2) years term of supervised release.
The Petitioner appealed his conviction. In an unpublished opinion, the Fourth Circuit upheld Petitioner's convictions, noting that "the evidence is abundant that Fondren was aware that he was passing classified information to an agent or representative of a foreign government." United States v. Fondren, No. 09-5136, 2011 WL 933700, *15 (4th Cir. March 18, 2011). On August 15, 2011, the Petitioner filed a Petition For Writ Of ...