Three federal courts ruled last week that the U.S. government overplayed its hand in prosecuting U.S academics.
In separate cases, attorneys for the Department of Justice had maintained that chemist Franklin Tao, materials scientist Zhengdong Cheng, and mathematician Mingqing Xiao jeopardized the nation's security and defrauded the government by hiding ties to Chinese institutions from the federal agencies funding their research. Some of the most serious charges were either thrown out or given relatively light sentences last week. One judge threw out Tao's fraud convictions, another accepted a plea deal that dropped nine fraud charges against Cheng, and the third sentenced Xiao to a year of supervised release for failing to report a foreign bank account.
Legal experts say the DOJ's theory of what constitutes fraud is not valid. Margaret Lewis, a law professor and China scholar at Seton Hall University, doubts prosecutors should have pursued criminal convictions for what are often treated as civil or administrative violations. She says that the duty of a prosecutor is to get justice.
The Department of Justice recommended a sentence it believed appropriate under the law and facts of the case after Xiao was sentenced. We agree with the court's decision. The two other cases weren't commented on.
The China Initiative was launched by the Trump administration in order to stop economic espionage. Civil rights groups said the majority of them were of Chinese descent. Although prosecutors won guilty pleas and prison terms for some defendants, they eventually dropped charges against many others or failed to win jury verdicts.
There were setbacks for the DOJ last week. In the case of Tao, who is on leave from the University of Kansas, Lawrence, a jury found him guilty on one count of making a false statement by filing incomplete paperwork and three counts of fraud, but he was acquitted of four related fraud charges. The National Science Foundation and the Department of Energy were accused of being involved in a fraud by the prosecutors.
The fraud convictions were thrown out last week by the district judge. Robinson noted in her 61-page decision that the U.S. Supreme Court has held fraud requires proof that a person deprived them of money or property. She wrote that he had delivered the research he promised to his funders. The evidence showed that all three got what they wanted.
The fraud charge would never have been brought in any other case, according to Peter. When it comes to Chinese American scientists and anything related to China,prosecutors haven't applied the normal filters that they go through.
The only remaining count is scheduled to be sentenced in the new year. Similar findings by judges in other China Initiative cases have been echoed by Robinson.
Anming Hu, a mechanical engineer at the University of Tennessee, was found not guilty of six charges of defrauding NASA. Varlan wrote that no rational jury could conclude thatHu acted with a scheme to defraud NASA by failing to reveal his affiliation with a Chinese university.
The fraud charges against Xiao were thrown out by the district judge. He was acquitted of making false statements but convicted of failing to disclose a foreign bank account on his tax returns.
The judge rejected the government's request that Xiao be sentenced to one year in prison and fined. She ordered Xiao to pay a $600 fine instead. Xiao is currently on administrative leave.
Ryan Poscablo of Steptoe & Johnson said that the tax charges were more deserving of civil remedies.
Cheng, a materials scientist at Texas A&M University, College Station, was arrested and jailed in August 2020 on charges of making false statements and fraud relating to a NASA grant. The government stopped counting fraud last week. Cheng pleaded guilty to two counts of making false statements and agreed to repay NASA. Cheng had already spent 13 months in jail, so the two sides agreed on a prison sentence. The university terminated Cheng in December 2020.
There are many active China Initiative cases. The initiative was renamed because of the perception that the phrase has had a chilling effect on U.S. based scientists of Chinese origin. There has been no substantive change in the government's approach to counter nation-state threats.
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