Why a judge might overturn a guilty verdict against a U.S. scientist for hiding China ties

Last week’s guilty verdict certainly came as a blow to Franklin Tao, a chemical engineer at the University of Kansas, Lawrence, on trial for lying to the U.S. government about his ties to China. But comments from the judge overseeing Tao’s case, both before and after a jury convicted him on four of eight counts, have prompted Tao’s attorney to boldly suggest the convictions might be overturned.

Such a judge-ordered acquittal would be a rarity in a federal criminal trial. But other recent court rulings involving politicians and high-profile executives—as well as the acquittal in fall 2021 of another academic scientist facing similar charges of hiding ties to China—suggest it could happen.

“There is a lot of commonality between that [China-related] case and this one,” said U.S. District Judge Julie Robinson during Tao’s trial. She was referencing the government’s unsuccessful prosecution of University of Tennessee, Knoxville, mechanical engineer Anming Hu, whose case resulted in a mistrial before a judge dismissed the charges.

Robinson’s linkage of the two cases is significant, believes Michael German, a retired FBI agent now at the Brennan Center for Justice at New York University. “In both cases, the government found administrative errors and argued that it was part of the defendant’s overall strategy to defraud the government,” German says. “But the [Hu] judge recognized the flaws in that argument and threw out the case.”

Tao’s attorney has now asked for the same result, and several moves by Robinson suggest she is seriously considering the request. For example, immediately after the jury reached its verdict on 7 April, Robinson took the unusual step of not setting a date for sentencing. (Tao faces up to 20 years in prison and a $250,000 fine.) Instead, she asked lawyers for each side to clarify their position on four issues she said were germane to deciding Tao’s fate.

One is whether Tao intended to defraud the government, as the government maintains. The second is whether he acted for financial gain, that is, to improperly obtain a federal grant. The third is whether the government would have acted differently, including not awarding Tao a grant, had it known about his ties to China. The last is whether the government suffered any harm from his actions.

Was there a quid pro quo?

Robinson also asked for arguments relating to whether the charges against Tao involved a type of criminal activity called “honest services fraud” that could be pivotal in her eventual ruling. That charge has loomed large in cases in which prosecutors go after public officials who have allegedly taken a bribe or kickback in exchange for steering a contract or some other reward to a constituent. For decades it was also a tool for the U.S. government to prosecute private individuals for failing to disclose any potential conflict of interest in connection with their job.

In 2010, however, the Supreme Court narrowed its scope of such prosecutions to bribes and kickbacks. The ruling came in a case in which the court partially overturned the conviction of Jeffrey Skilling, former CEO of Enron, for cheating stockholders by inflating the company’s value. In essence, the high court said the government had failed to prove he had accepted a bribe in exchange for doing something of value for that person.

In Tao’s case, Robinson said federal prosecutors need “to convince me that this is not a … Skilling situation, that is, not sort of essentially an honest services case.” Robinson said two recent cases—involving the erasure of fraud convictions against former Virginia Governor Robert McDonnell and several New Jersey officials involved in the “Bridgegate” scandal—raised similar questions about whether the government had overreached in prosecuting Tao.

Instead of suspending the trial so she could solicit and then assess the arguments from both sides, Robinson let the jury deliberate. It found Tao guilty of three counts of wire fraud, that is, lying to federal officials for purposes of defrauding the government, and one count of making a false statement about his relationship with Chinese institutions. It found him not guilty of four similar charges. After announcing the verdict, Robinson reiterated that she had “significant issues” with the case. She has given the lawyers until late June to present their arguments.

Tao’s attorney, Peter Zeidenberg, hopes the additional review will be the first step toward an acquittal. “While we are deeply disappointed with the jury’s verdict, we believe it was so clearly against the weight of the evidence we are convinced that it will not stand,” Zeidenberg said immediately after the verdict.

A short press release from the Department of Justice (DOJ) cited the convictions but did not include any comments from the lead prosecutor in the case.

A trio of trials

Arrested in June 2019, Tao was the first academic scientist prosecuted under the China Initiative, a controversial program begun in 2018 under then-President Donald Trump that was aimed at rooting out economic espionage. However, only two of some two dozen academics charged under the initiative were ever prosecuted for espionage-related offenses; the others were generally charged with failing to disclose ties to Chinese institutions to U.S. funding agencies.

U.S. universities once encouraged interactions with Chinese institutions, notes German, a vocal critic of the erstwhile China Initiative, and academics like Hu and Tao were praised for building those links. “Now the FBI is saying that all such collaborations pose serious national security risks,” German says. “But they are conflating the very real threat of economic espionage by China with collaborations on fundamental research that pose no such threat.”

Only three of the disclosure and fraud cases have gone to trial. In the first, Hu was ultimately acquitted. In December 2021, Harvard University chemist Charles Lieber was found guilty of concealing his participation in a Chinese foreign talent recruitment program and not reporting payments from that program to the government.

Tao’s trial began 1 month after Assistant Attorney General Matthew Olsen rebranded the China Initiative to address criticism from civil rights groups and many academic leaders. In a 23 February speech at George Mason University, Olsen said the name had “fueled a narrative of intolerance and bias” against scientists of Chinese origin and had a chilling effect on research collaborations with China. Going forward, Olsen said, such cases would be part of a global “strategy for countering nation-state threats” at DOJ.

Olsen also promised that the department would want strong evidence of “intent and materiality” before charging researchers in cases involving alleged threats to national security. However, he seemed to rule out applying that standard to existing cases, including those like Tao’s for which a trial date had been set.

At Tao’s trial, Robinson appeared to signal her concern that the government had not demonstrated he had intentionally committed a crime, or that his actions had produced material gain for himself or harm to the government. (The government has repeatedly suggested that discussions Tao had with Fuzhou University in China about a research collaboration showed he hoped to benefit from his alleged deception. But the jury was not asked to address that issue.) Robinson also noted that a similar question of intent had come up in the failed prosecution of Hu. “It was in that case the judge drew a distinction between intent to deceive and intent to defraud,” she noted.

For the moment, some 32 months after his arrest, Tao remains on unpaid leave and is confined to his suburban home outside Manhattan, Kansas. His legal bills continue to mount; his GoFundMe campaign has raised $650,000 toward a goal of $1 million.

Tao has declined to comment on the verdict. But last week his wife, Hong Peng, wrote to his supporters on social media: “4 counts to go until Franklin is finally free of this injustice!”

source: sciencemag.org