Congratulations to the Obama Department of Justice for being named to the Hall of Shame!
Meritless indictment of Prof. Xiaoxing Xi
Zane D. Memeger, U.S. Attorney, Eastern District of Pennsylvania (Philadelphia)
Edward J. Hanko, FBI Special Agent-in-Charge
Jennifer Arbittier Williams, Assistant United States Attorney
May 2015: indicted Prof. Xiaoxing Xi for sending schematics of “pocket heater” to China. Did not consult with experts before taking the case to a grand jury. Schematics were not a “pocket heater”.
September 2015: charges dismissed
Meritless indictment of Sherry Chen
Carter M. Stewart, United States Attorney for the Southern District of Ohio
Kevin R. Cornelius, Special Agent in Charge for the FBI in Cincinnati, Ohio,
Dr. Kathryn Sullivan, Administrator of the National Oceanic and Atmospheric Administration’s (NOAA)
George Lee, Special Agent in Charge of the U.S. Department of Commerce’s Investigations and Threat Management Division
Dwight Keller, Assistant United States Attorney
October 2014: indicted Sherry Chen, NOAA National Weather Service employee for downloading restricted government files for China.
March 2015: charges dismissed.
5/9/15 New York Times: “Accused of Spying for China, Until She Wasn’t”
Meritless Indictment of Guoqing Cao and Shuyu “Dan” Li
U.S. Attorney Joe Hogsett (Southern District of Indiana)
Cynthia A. Ridgeway, Assistant United States Attorney
Bill Heath, head of global product development for Eli Lilly
October 2013: indicted them for stealing trade secrets and sending them to China. Not actually trade secrets.
December 2014: charges dismissed
12/5/14 Indianapolis Star: Feds dismiss charges against former Eli Lilly scientists accused of stealing trade secrets
by Jeff Swiatek and Kristine Guerra
The U.S. attorney’s office is asking a federal judge to dismiss all charges filed against two former Eli Lilly and Co. scientists accused of stealing company trade secrets and passing them on to a competitor in China.
5/15/16: 60 Minutes: Collateral Damage
5/14/2016 Huffington Post: “Racial Profiling: Doing Science While Asian American”
by Frank H. Wu
In the past two years, the federal government has twice targeted Asian immigrants for prosecution with sensational allegations that they were spies, only to be embarrassed by the cases turning out to have no basis whatsoever. The federal government rarely sees its criminal cases disintegrate in such absolute terms, but it possesses the power to ruin the lives of naturalized citizens. Both Xiaoxing Xi, chair of the physics department at Temple University, and Sherry Chen, a mid-level civil servant with the National Weather Service, vindicated themselves through exhaustive struggles. The CBS News program Sixty Minutes has produced a segment about their fight for justice.
5/4/16 Los Angeles Times: “Op-Ed: Is racial bias to blame for the high number of Asian Americans charged with espionage?”
by George Koo, Daniel Olmos
In recent years, federal prosecutors have brought a number of high-profile criminal cases against Asian Americans accused of economic espionage or theft of trade secrets. Announced with great fanfare, many of these cases later collapsed.
11/25/15 San Francisco Weekly: “The Dangers of “Downloading While Asian””
By Yael Chanoff
In the early morning of May 21, Xiaoxing Xi, his wife, and their two daughters were awakened when a dozen FBI agents stormed their house in Penn Valley, Pa., a suburb 10 miles north of Philadelphia. The agents, dressed in SWAT gear with guns drawn, arrested Xi as his wife and daughters looked on.
11/23/15 press release: “U.S. Commission on Civil Rights Requests Department of Justice Investigation Into Recent Questionable Prosecution of Chinese American Scientists”
Washington, /PRNewswire-USNewswire/ — The U.S. Commission on Civil Rights, by majority vote, has issued a letter to Attorney General Loretta Lynch concerning targeting of Chinese American scientists for alleged spying and espionage. The Commission’s letter expresses concern that the government may be failing to exercise sufficient due diligence when targeting Chinese Americans. The Commission letter requests that the Department of Justice increase training and oversight in ongoing and future investigations and prosecutions.
According to a recent article in Science magazine, in the past year, five Chinese-born scientists have been accused of trade secret theft or economic espionage, only for the federal government to drop the charges after recognizing mistakes and insufficient or nonexistent evidence. In the case of Temple University professor Xi Xiaoxing, prosecutors arrested Dr. Xi for sharing confidential laboratory equipment schematics but dropped the charges after scientists informed the government the plans he shared were for a different technology. Although charges were dropped, the accused were left with tarnished reputations and legal bills to pay.
These prosecutions have harmed the individual scientists and their families and caused concern in the Asian American community about unfair treatment and racial profiling.
Commission Chairman Martin R. Castro on behalf of a majority of the Commission stated, “While combating spying and economic espionage is vital to our national security, just as important are the protections of our civil rights and civil liberties. American citizens are entitled to due process and should not be targeted on the basis of their race or ethnicity—that is un-American.”
The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing a federal civil rights enforcement report. For information about Commission’s reports and meetings, visit http://www.usccr.gov.
11/19/15 Vice News: “Why Does the FBI Keep Arresting Asian-American Scientists?”
By Avi Asher-Schapiro
Last May, Dr. Xiaoxing Xi awoke to find a team of FBI agents brandishing guns and screaming at him to put his hands behind his back. Agents slammed the 57-year-old Temple University physics professor against a wall and dragged him away in handcuffs — all in front of his wife and two daughters.
11/12/15 Washington Post: “Chinese-Americans are being caught mistakenly in the U.S.’s cybercrime dragnet”
By Peter Zeidenberg
Peter Zeidenberg is a partner in the white-collar and investigations practice at the Arent Fox law firm in the District and represented both Xiafen “Sherry” Chen and Xiaoxing Xi.
News item: Xiafen “Sherry” Chen, a Chinese American hydrologist at the National Oceanic and Atmospheric Administration, is arrested at her office; the U.S. government accuses her of illegally accessing data at the behest of Chinese officials; less than a week before going to trial, the government drops all charges.
News item: Xiaoxing Xi, Chinese American chairman of the physics department at Temple University, is arrested at his home in front of his wife and children by a dozen armed agents; the government accuses him of helping the Chinese by providing them with proprietary materials owned by a U.S. company; all charges are dismissed after a PowerPoint presentation that includes affidavits from prominent physicists makes clear that no crime was committed.
9/15/15 New York Times: The Rush to Find China’s Moles
By The Editorial Board
Feeling besieged by China’s spies, who have had success in stealing government and corporate trade secrets, the United States has ramped up its efforts to find moles. In at least two recent cases, however, F.B.I. agents and federal prosecutors appear to have acted with reckless haste.
On Friday, prosecutors dropped wire fraud charges filed in May against Xi Xiaoxing, the chairman of Temple University’s physics department. He was accused of sharing privileged technology with China and faced up to 80 years in prison.
Prosecutors said Dr. Xi provided the design of an item known as a pocket heater, used in superconductor research. The allegation fell apart after defense lawyers pointed out that the government had grossly misread the evidence it used to secure an indictment. As it turned out, Dr. Xi, a naturalized American citizen, had emailed scientists in China information unrelated to the pocket heater.
The embarrassing blunder came a few months after federal prosecutors in Ohio dropped charges against another Chinese-American professional, Sherry Chen, a National Weather Service employee who was also suspected of being a Chinese mole. She was charged with four felonies, including unlawfully downloading information about critical infrastructure. Her problems began after a colleague reported that she had emailed an official at China’s Ministry of Water Resources. The colleague had been copied on the email and found it suspicious.
The email was Ms. Chen’s response to a question from a Chinese official who had asked her during a meeting in Beijing how water infrastructure projects in America were funded. The information she gave him was harmless and publicly available.
China was reportedly behind a huge breach of the servers of the Office of Personnel Management, which could well give Beijing valuable information about millions of Americans who have been granted security clearances. Further, the theft of proprietary technology poses a considerable threat to the American economy. It is hardly surprising that the Justice Department has given priority to prosecuting espionage cases involving China.
But these concerns cannot justify prosecutions driven by supposition rather than solid evidence. The charges filed against Mr. Xi and Ms. Chen traumatized them and their families and needlessly damaged their professional reputations. Nether got an explanation or an apology from the government. They deserve both.