The Scientist and the Spy

by Mara Hvistendahl

  Shortly before boarding started, an airline worker paged the two men. Separately, in their distinct seating areas, Ye Jian and Dr. Li ignored the announcement. A few minutes later their names crackled over the loudspeaker a second time. When the men still did nothing, CBP agents approached the men to question them about the seed in their luggage, using the guise of U.S. agriculture regulations, which prohibit passengers from taking seeds and plants out of the United States without a permit.

  Stopping suspects under the premise of a routine border search was a common strategy in trade secrets theft cases. On another day at O’Hare five years earlier, former Motorola engineer Hanjuan Jin had attempted to fly back to China with storage devices containing more than a thousand company documents. In her case, the airport search was swiftly followed by arrest—and, after a trial, four years in federal prison.

  But the corn case presented an added wrinkle: Agents couldn’t arrest the men on the spot. The bureau had bugged the rental car that Ye Jian and Lin Yong drove around the Midwest, capturing their conversation about what laws they were breaking. Agents had also recorded audio of Robert and the other men talking about how to divide up the seeds. But Mark Betten’s team hadn’t yet analyzed the audio; they didn’t know what they had. The FBI had opted for more conventional bugs because live wires that could be monitored in real time required either the constant presence of a nearby surveillance team equipped with radio transmitters or consistent cell phone signals, and in the rural Midwest both were difficult to arrange. At the time of the airport encounter, the audio hadn’t yet been translated into English. Then, too, a case built entirely on potentially incriminating statements might leave a defense lawyer with plenty of opportunities to poke holes. To leave an airtight case for prosecutors, investigators needed to test the seed. Because that could not be done immediately, agents would have to let the men fly back to China. And if they were too obvious about either the search or their questioning, the men might never return.

  Mark knew the risk the FBI ran by seizing seed and questioning the DBN employees without arresting them. But it was clear that the men were carrying more than microwave popcorn, and that their stash likely included Pioneer and Monsanto products. Letting the men leave the country with stolen intellectual property would defeat a two-year investigation on which the bureau had blown untold funds.

  When the CBP agents confronted Ye Jian, he lied and said he was traveling alone. Dr. Li lied as well, but with certain details he was more forthcoming. He bought his stash of seed, he told the agents, from a man named Mo Hailong.

  * * *

  • • •

  IN ANOTHER TERMINAL AT O’HARE, Wang Hongwei, the Canadian man who had helped package seed at the Monee farm, boarded a United flight to Burlington, Vermont. When he arrived, he retrieved his car from an airport parking lot and headed north for the U.S.-Canada border. CBP agents have no authority to search passengers on domestic flights, but at the border they would have free rein—provided they caught him before he crossed.

  The drive from Burlington to the southern edge of Canada normally takes less than an hour. The FBI was on Wang’s trail from the time he set off. But as dusk fell, the agents lost sight of him when he turned without signaling into a mall parking lot. Agents alerted the border patrol at two nearby crossings, providing Wang’s license plate number. Soon after, he reached Highgate Springs Port of Entry, at the northwestern tip of Vermont.

  As the terminus of Interstate 89, Highgate Springs is one of the largest border crossings between the United States and Canada. The crossing sees heavy traffic, which makes it a good choice for a man hoping to be waved through speedily. But this is not what happened to Wang. Instead he was flagged for a search.

  In his car, agents found a notebook filled with what appeared to be latitude and longitude coordinates, a digital camera storing hundreds of pictures of cornfields, and, stashed underneath a seat, forty-four small brown bags containing manila envelopes filled with seed. CBP officers copied the photos of cornfields to an external drive and seized the envelopes of seed. Then they let Wang cross.

  TWENTY-TWO

  FALL 2012

  As Wang Hongwei drove north through Quebec, crossing the Pike River, Dr. Li and Ye Jian soared over the Arctic Ocean on their way to Beijing. Their moods had dimmed. They, too, had been allowed to leave the United States. But like Wang they, too, had been forced to forfeit their seed.

  Robert, meanwhile, landed in Florida. He retrieved his car and drove home to his Boca Raton cul-de-sac, cruising past gardens lined with palm trees, unaware that everything about the operation was now in danger.

  * * *

  • • •

  SOON AFTER ROBERT ARRIVED, Ye Jian called him and frantically explained that he and Dr. Li had been stopped by agents and their luggage thoroughly searched. Robert tried to reassure him. It’s normal for them to check, he said, as if he himself had not been a bundle of nerves for the preceding months. But Robert’s attitude changed when he found out that Dr. Li had given his name to the authorities.

  He had never much liked Dr. Li, but now his boss had really gone too far. Robert was the one who had made a life in the United States—the one with fully American children, the savings in U.S. dollars, a mortgage to pay off. And now his colleagues at DBN were safely back in China, leaving him uniquely vulnerable. He opened a document on his computer and drafted an indignant note to his brother-in-law. Shao Genhuo needed to know what Dr. Li had done.

  In the letter, Robert lamented the loss of the seized seeds. He explained the danger that the FBI or some other authority might compare the seeds seized from Dr. Li and Ye Jian at the Chicago airport with those seized from Wang’s car at the Vermont-Canada border and discover that the codes matched up. “The team led by Dr. Li worked very hard in the U.S. this time and received sizeable results,” he wrote, starting on a positive note. He added that the seeds “unfortunately were seized by U.S. customs, and the resources were confiscated.”

  He continued:

  Because each set of the resource had one to two thousand small bags with clear sequential marks, if Li’s and Wang’s resources were combined, it would be very easy to determine they were two sets of the same things. That would make the matter very severe. The accumulated work done in North America could be completely destroyed by Dr. Li’s aggressive decisions.

  At the first sign of trouble, Dr. Li had needlessly sacrificed him. Robert felt that his brother-in-law had tolerated Dr. Li’s antics for too long. It was time for him to get tough.

  Robert had not bargained for all of this stress. On top of the close call with the U.S. authorities, his health was suffering. A groin injury he had suffered years ago in a basketball game was bothering him. When he felt around just above his left thigh, there was a small lump. He made a mental note to get it checked.

  TWENTY-THREE

  2015–2016

  I had set out to report on one very specific story—that of the man found in a field where he didn’t belong. But it quickly became clear that Robert’s case was wrapped up with those of other defendants like him. In just my first year back in the United States, the U.S. government brought industrial-espionage-related charges against thirteen people. All of them were ethnic Chinese.

  Some of these cases involved technologies of clear national security importance and were accompanied by extensive court documents detailing serious crimes. But in other cases, charges were announced with breathless press releases and heated rhetoric and then a few months later were dropped entirely. In the federal court system, the conviction rate is 93 percent, and U.S. attorneys typically don’t waste resources on cases with thin evidence. By the time defendants are charged, prosecutors are usually confident that they can win a conviction. But these cases were different. One minute the accused were enemies of the state, and the next minute it was as if nothing had happened.

  I started to wonder whether in these botched cases th
ere might be echoes of the Wen Ho Lee investigation. In time I realized that I wasn’t the only one who felt that way. A whole community of activists had sprung up around the issue.

  Among them was Haipei Shue, president of United Chinese Americans, a D.C.-based federation of community groups around the country. One morning in May 2015, Shue was reading the news in his office in Washington when he came across a New York Times article about a woman named Sherry Chen, a National Weather Service employee who had been accused of passing information about the U.S. dam network to a Chinese official. The previous October, the FBI had arrested Chen at her office, charging her with four felonies. She faced twenty-five years in prison and $1 million in fines. Now, Shue read that prosecutors had dropped all charges.

  “It was shocking to me that the government would throw this much power and resources and intensity behind a case, when it’s fundamentally something that she did not do,” he told me. “I thought, Wow, could there be more like this?” He recalled what had happened to Wen Ho Lee in 1999. Shue had been working in D.C. on trade issues when the case unfolded. He scrambled into action.

  Within days, Asian-American community organizations came together to demand answers on the Sherry Chen case. Specifically, they wanted to know whether what happened to Chen was part of a pattern of racial profiling.

  On May 21, 2015, twenty-two members of Congress signed a letter to Attorney General Loretta Lynch requesting an investigation into whether federal employees were being racially targeted. Representative Ted Lieu of California, one of the letter’s signatories, bemoaned the targeting of innocent scientists as “a constitutional and civil rights problem.” In July 2015, the group received a reply from the Justice Department denying the existence of racial profiling. But then news broke of additional botched investigations involving ethnic Chinese scientists.

  That is how I found myself at a café in Minneapolis, sitting across from Joyce Xi, as she recounted how everything imploded for her family.

  * * *

  • • •

  IN MAY 2015, Joyce was a senior at Yale majoring in chemistry. She had just finished her spring classes and was home in Penn Valley, Pennsylvania, looking forward to the summer. She had one semester left of college, and she was trying to figure out what to do after graduation. Then one morning the FBI showed up at her family’s house with a battering ram, guns drawn, and hauled her father off in handcuffs.

  Xiaoxing Xi was the interim chair of the physics department at Temple University in Philadelphia. He had emigrated from China in 1989 and was a naturalized U.S. citizen. Unlike Robert Mo, Xi was not some middling researcher in desperate need of money. A world-renowned expert on superconducting thin films, he oversaw a team of fifteen people and received more than $1 million a year in U.S. government research funding. His team had just obtained breakthrough results on two separate topics, which he was preparing to submit to Science and Nature. On the way home from her father’s bail hearing later that day, Joyce read a copy of the indictment that had been brought against him. He was charged with trying to transfer to China designs for a device called the pocket heater, which makes thin films of the superconductor magnesium diboride. He faced eighty years in prison and $1 million in fines.

  The family arrived back home to find FBI agents milling around outside, waiting to execute a search warrant. The agents soon fanned out through the house, collecting the family’s possessions: documents, cameras, laptops. As they worked, television news crews filmed segments from the front yard. A well-meaning agent taped a bedsheet to the front window so that the crews couldn’t film the family inside, but later that night, when the FBI finally left, reporters rang the doorbell.

  It eventually became clear that prosecutors had proceeded without checking the science behind their charges. Xi was charged with wire fraud, which one prosecutor described to me as a backstop charge that is used when economic espionage is difficult to prove. The purported evidence against him consisted of four emails he had sent to labs in China in which he had discussed legitimate collaboration efforts with scientists there. One project involved a thin film deposition device, but it was not the pocket heater. Experts submitted strongly worded affidavits in his defense. One of them, Paul Chu of the University of Houston in Texas, told me Xi’s offer to collaborate with Chinese colleagues on basic research was perfectly normal in the field of superconductivity. Another, physicist David Larbalestier at Florida State University in Tallahassee, called the entire case “just completely misconceived.” About the type of thin films at issue in the case, he said: “The whole idea that there are huge pots of money that anybody is making out of magnesium diboride is just wrong. I am mystified as to why the case was brought.”

  Four months later, the U.S. attorney’s office in Philadelphia abruptly dropped all charges against Xi, noting only that “additional information came to the attention of the government.” Commentators were quick to fill in the gaps. Xi’s crime, according to one legal blog, was “emailing while Chinese-American.”

  Four months is long enough for lives to be sent into a tailspin. Xi was released after putting up his family’s home as collateral for bail, and throughout the summer, he and his family stayed inside, limiting contact with friends and neighbors out of fear that someone could turn against them. They worried that people might want to physically harm them. They didn’t know whom to trust, Joyce told me, her voice quavering.

  The ordeal marked her political awakening. “This is not the America I thought I knew,” she wrote in an op-ed article for USA Today, seven days after the charges against her father were dropped. “As our country faces increased anxiety over China, the government is targeting innocent Chinese Americans.”

  In addition to Xi and Chen, it turned out that three other ethnically Chinese defendants had seen charges dropped in trade secrets theft–related cases since 2013. In one of these cases, prosecutors accused Guoqing Cao, a Chinese-born U.S. citizen formerly employed by Eli Lilly, of being a traitor. One of the trade secrets Cao was accused of sharing turned out to be a broad description of his job responsibilities on his résumé, which he sent to a Chinese company when applying for a job. Other alleged trade secrets were findings that had appeared in published papers years earlier. The man’s crime, it seemed, was that he had run afoul of a former employer by taking a job with a competitor. “The word is not treason,” the attorney for his co-defendant told reporters. “The word is overreach.”

  The urgency surrounding economic espionage was so great that charges were being brought without much vetting, advocates alleged. “The U.S. government put two and two together and came up with five,” said D.C.-based intellectual property lawyer Peter Toren, a former prosecutor with the Justice Department’s Computer Crime and Intellectual Property Section who helped draft parts of the Economic Espionage Act, of the Xi case. “And I think that’s very troublesome.” Peter Zeidenberg, an attorney with the law firm Arent Fox who represented both Xi and Chen, told me, “As a former prosecutor, I can tell you that if you’re looking for a crime and that’s what’s rewarded, you’re going to find it. There is an overreaction to a legitimate concern, which is leading to people being victimized.” Technology theft cases involved what one attorney described as a trifecta of challenging topics: China, complicated technologies, and intellectual property law. Given the FBI’s institutional history of racial profiling, cases like Xi’s suggested a real problem: Faced with a complex investigation, an agent might be subconsciously swayed by a suspect’s ethnicity.

  The campaign led by Asian-American community organizations now shifted into high gear. Congressional leaders redoubled their entreaties to Attorney General Lynch on the issue of racial profiling. Activists who had worked on the Wen Ho Lee case took leading roles. In the early 2000s, Jeremy Wu had handled complaints about racial profiling as Department of Energy ombudsman. Now he started a legal defense fund for Chen. Civil rights lawyer Aryani Ong had raised concerns about the Lee
case with high-level government officials. Now she helped organize regular conference calls for groups to share information and ideas. “Fifteen years had passed since Wen Ho Lee,” Ong told me. “How did we get here again?”

  Organizations staged “know your rights” seminars for scientists across the country. In these sessions, attorneys outlined the laws governing trade secrets theft and economic espionage. Assume that all communications with researchers in China are being monitored, they said. Assume that your devices will be searched at the border. Assume that anything that can be misinterpreted will be. They emphasized that even having a trade secret in your memory can be a crime.

  Many participants walked out more worried than reassured. “The indictments have instilled a great deal of uncertainty and anxiety in our community,” Albert Chang, a physicist at Duke University in Durham, North Carolina, told me. “People are wondering, ‘Is this going to happen to me?’”

  Their worries were understandable. Andrew Chongseh Kim, a visiting scholar at South Texas College of Law, analyzed 136 cases brought under the Economic Espionage Act between 1996 and 2015. He found that 21 percent of defendants with Chinese names were never proved guilty of spying or other serious crimes, about twice the rate of defendants from other ethnic groups. While other factors might account for charges being dropped or downgraded, Kim wrote, “These findings raise the possibility that as many as one in five accused Asian ‘spies’ might actually be innocent.” Harvard law professor Noah Feldman compared the rash of economic espionage cases to anti-Communist cases in the McCarthy era, noting that both had “an ethnic cast.” In the McCarthy era, he noted, many secret U.S. Communists were Jewish. But that fact did not justify profiling people, because the vast majority of Jewish people were not Communists. The same went for Chinese-American scientists today, he added.