China Initiative Cases Dismissed

The federal government filed motions to dismiss charges against five Chinese researchers accused of lying on their visa applications about affiliations with the Chinese military last week.

The five researchers are part of a group of about a dozen Chinese scholars or students prosecuted for allegedly lying about Chinese affiliations or funding on various federal forms -- grant applications, visa applications and/or tax forms -- under the auspices of the Department of Justice’s controversial China Initiative.

The initiative was started under the Trump administration with the stated aim of investigating allegations of economic espionage and trade secret theft.

Prosecutors have said the initiative is important in focusing attention on the unique size and scope of the Chinese government’s role in abetting illicit technology transfer. Critics of this effort have raised concerns about racial bias and pointed out that many of the prosecutions do not involve allegations of intellectual property theft or espionage-related crimes and have centered instead on allegations of fraud.

A senior Justice Department official told The Wall Street Journal, which reported on the dismissals of the five cases, that the crimes the various researchers were accused of committing were usually punishable by a few months in prison, and all the defendants had been detained or placed under other restrictions since their arrests about a year ago. Prosecutors concluded their experiences over the past year amounted to sufficient punishment and deterrence.

The government claims that more than 1,000 researchers affiliated with the Chinese military left the U.S. shortly after the charges were filed last summer, according to The Wall Street Journal.

Department of Justice spokesman Wyn Hornbuckle told the newspaper that “recent developments” in the cases had prompted the department to reconsider the prosecutions.

“We have determined that it is now in the interest of justice to dismiss them,” Hornbuckle said. He said the department “continues to place a very high priority on countering the threat posed to American research security and academic integrity by the [People’s Republic of China] government’s agenda and policies.”

One of the five dismissed cases involved Juan Tang, a visiting cancer researcher at the University of California, Davis, and was scheduled to go to trial today.

U.S. District Judge John A. Mendez previously dismissed a charge that Tang had lied to federal agents, and he granted a motion to suppress statements she allegedly made during a June 20, 2020, interview with federal law enforcement agents. Judge Mendez ruled that the agents had erred in failing to inform Tang of her right not to speak to them or answer their questions.

Apart from the charge stemming from the interview, the government had alleged that Tang lied on her exchange visitor application when she answered “no” to the question of “Have you ever served in the military?”

According to the criminal complaint, the FBI turned up multiple articles in internet searches listing Tang’s affiliation with Air Force Medical University in China, including one article that featured a picture of her in what appeared to be a Chinese military uniform. The criminal complaint also said the email address and phone number listed on her visa application were linked to Air Force Military Medical University/Fourth Military Medical University.

Tang’s lawyers had argued in court filings that the question about military service on the visa application was “fundamentally ambiguous as to whether that term could mean full-time active-duty service, refers to any uniformed service, or even includes military employment in a wholly civilian capacity.”

Tang’s lawyers argued that she had a civilian affiliation with military institutions and that she had been up front about those ties.

“To the extent the government claims that she intentionally did not disclose her civilian affiliation with the military, they are wrong,” Tang’s lawyers argued in a brief submitted last week. “The evidence will show that she clearly disclosed her educational and professional background to U.C. Davis by providing the program with substantial information concerning her work at the Fourth Military Medical University (FMMU) as a cancer researcher, so that the program could certify her to the Department of State, although they knew that background already, including her publications which clearly disclosed and referenced her work at the FMMU and the FMMU (now the Air Force) hospital.”

Tang’s lawyers entered into the court record a report written by two Federal Bureau of Investigation analysts who found that the question about military service on the visa application "potentially lacks clarity when it comes to declaring one’s military service or affiliation … while some intentional obfuscation is almost certainly being used by the PLA [People’s Liberation Army] to gain entry into the US, there are grey areas where it is difficult for the FBI and DOS [Department of State] to determine whether obfuscation is intentional or for nefarious tech transfer purposes. Among the Civilian Cadre are a significant number of doctors and nurses and other professionals that at times are required to wear a military type uniform, but who would not necessarily consider themselves soldiers despite being considered as active duty."

The FBI analysts’ report on the visa fraud arrests, which is partially redacted, also says that "although there have been five arrests and one wanted scholar who remains at large as a result of this effort, only two of these six have had connections to technology transfer."

Malcolm S. Segal, an attorney for Tang, said he was "pleased that the government decided not to proceed further with the trial. I thought that we had an excellent chance at acquittal were the case to go in front of a jury."

Segal said Tang was detained for the first three months after she was arrested last July and was subsequently placed on house arrest. She has been released, and Segal said she has returned to China.

"Given the fact that Dr. Tang has devoted herself to cancer research over the last 20 years and received numerous awards for her research and published some 25 articles which furthered cancer research, personally and professionally I’m pleased to see that she will be able to return to those responsibilities and continue her efforts," Segal said. "She's only 38 years [old] and probably has a long and successful career in front of her."

The other four scholars whose cases were dropped are Guan Lei, a visiting researcher in mathematics at the University of California, Los Angeles; Zhao Kaikai, a Ph.D. student studying machine learning and artificial intelligence at Indiana University Bloomington; Chen Song, a visiting researcher in a neurological research lab at Stanford University; and Xin Wang, a visiting scholar in medicine at the University of California, San Francisco.

Lawyers for Song, the visiting neurology researcher at Stanford, said they were relieved the government had dropped the charges against her.

"Dr. Song came to the United States for one reason: to become a better doctor," Ed Swanson, one of her lawyers, said via email. “While at Stanford, she did important research to help patients suffering from brain diseases -- patients in the United States, China and throughout the world. Dr. Song has been separated from her family for over a year, and we are delighted she will be home for her daughter’s eighth birthday.”

The government’s moves to dismiss the cases involving the five scholars follows a mistrial in another China Initiative-related case, which was the first one to go to trial.

Jurors deadlocked last month in deliberating the charges against Anming Hu, a former professor at the University of Tennessee at Knoxville who was accused of lying about ties to a Chinese university on grant applications to the National Aeronautics and Space Administration. The judge ordered the government to provide a status update indicating whether it will attempt to retry Hu no later than this Friday.

Following the mistrial, three Democratic members of Congress -- Ted W. Lieu, of California; Mondaire Jones, of New York; and Pramila Jayapal, of Washington State -- wrote to the Justice Department’s Office of Inspector General asking it to look into whether racial profiling occurred in the case and whether there was “an adequate non-racial or non-ethnic factual predicate to open this investigation.”

Civil rights and Chinese American scientific groups have called on the government to end the China Initiative.

Gisela Perez Kusakawa, a law fellow at Asian Americans Advancing Justice -- AAJC, a civil rights organization, said the group’s analysis of 83 Department of Justice press releases tied to the China Initiative found that "almost 90 percent of the defendants are of Asian descent, and roughly 48 percent of the cases include no charge of economic espionage, trade secrets theft or what we at AAJC have identified as espionage-related crimes.

"We believe that the U.S. government has at times overreached under the China Initiative and is surveilling, targeting and overcriminalizing scientists of Asian descent," she said. "We are concerned that essentially prosecutors are looking through grant applications, immigration applications and scientific publications for evidence of contact with China and then [searching] for wrongdoing. Based on the U.S. Constitution, they should have at least a reasonable suspicion of wrongdoing before launching an investigation."