The Scientist and the Spy

by Mara Hvistendahl

  Activists pointed out that bungled prosecutions could backfire, creating a hostile environment and propelling talented scientists back to China out of necessity or fear. According to the National Science Foundation, students from China account for 10 percent of all science and engineering PhDs earned at U.S. universities—more than any other nationality. As the Chinese Communist Party tries hard to recruit talented overseas Chinese scientists, sloppy charges make it easier for them to decide to leave. In the years following the Wen Ho Lee debacle, so many disillusioned Chinese-born weapons scientists returned to China that they became known as the Los Alamos club. Critics worried that in the name of protecting innovation, the U.S. government was singling out for scrutiny the very people who powered America’s labs.

  The media picked up on the story. 60 Minutes aired a segment on the botched cases, and The New York Times published an editorial calling for Chen and Xi to receive a formal apology, alleging that FBI agents and federal prosecutors “acted with reckless haste.” In March 2016, the Department of Justice instituted a rule change stipulating that all cases involving national security issues, including ones involving tangential charges like wire fraud, be overseen by the National Security Division. But an apology never came.

  Chen, meanwhile, petitioned the U.S. Commerce Department, which oversees the National Weather Service, to get her job back. In April 2018, a judge with the U.S. Merit Systems Protection Board ruled in her favor. She then sued the federal government. “An unsubstantiated and patently racist accusation set into motion a modern-day witch hunt where hundreds of thousands of our tax dollars were spent to try to prove a ‘Chinese national’ a spy,” her attorney, Michele Young, told news outlets. Xi took his case to a law firm in Philadelphia, which brought a suit against the FBI agent who oversaw his investigation. (The American Civil Liberties Union later joined the suit.) In late 2019, both cases were in litigation, and Xi’s family was still paying off legal fees connected to the erroneous pocket heater charges.

  For Joyce, the experience prompted a realization that the U.S. justice system often failed people. “We had to deal with a lot of lingering issues, all for nothing,” Joyce said. “And all because of some incompetence that was not our fault.” After graduation, she ended up going into racial justice work.

  The damage from these cases extended beyond the lives of people like Joyce Xi, to the larger community of foreign-born scholars who contributed to the project of American innovation. Prominent researchers told me of aspiring PhD students from China who worried about the wisdom of studying in the United States. Canada and Europe offered attractive alternatives—as did China, where botched cases became powerful ammunition for the state propaganda machine. In the wake of Sherry Chen’s arrest, the Chinese state-run English newspaper Global Times ran a strident editorial headlined WASHINGTON’S SPY CHARGES PARANOID. “The U.S. has a history of indulging in persecution of certain groups of immigrants,” it read. “We hope Chinese-Americans won’t suffer from this because of China’s rise.” Return to China, the article implied to scholars, and your work will be celebrated rather than vilified.

  Unlike Xiaoxing Xi and Sherry Chen, Robert Mo was not the sort of defendant who inspired people to call their congressperson. Even so, his situation underscored that in economic espionage cases, investigators and prosecutors were willing to go to extremes.

  TWENTY-FOUR

  FALL 2012–SUMMER 2013

  In the weeks following the airport bust, Mark’s team obtained a warrant to test the haul of corn seized by the CBP. Investigators now had in their possession twenty-five thousand seeds. But they now had to confirm that the seized seeds were in fact trade secrets. That was a gargantuan task.

  In trying to crack the code used on the envelopes, FBI analysts first tried the obvious, comparing the labels—2155, 2403, F1—against product numbers used by Pioneer and Monsanto. When they didn’t find a connection, they looked at GPS coordinates. The tracking device attached to the Tahoe had logged the coordinates of the fields where Lin Yong and Ye Jian had stopped, and there were more coordinates in the notebook border agents had taken from Wang Hongwei’s car. But the numbers on the envelopes still didn’t match up.

  For Mark, the FBI’s inability to break the code was frustrating because it meant that the seeds, assuming they were stolen, could belong either to Monsanto or to Pioneer—or even, perhaps, to a third company. GPS tracking information from the rental cars the men had driven wasn’t much help. In some areas where the men stopped, there were inbred fields belonging to different companies on both sides of the road. Because the cars typically remained parked on the asphalt, it was impossible to know without other evidence what side of the road they had targeted. In order to test the unidentified seed, prosecutors would have to get Monsanto and Pioneer to agree on a protocol. And the two companies agreed on almost nothing. The process of brokering a consensus would make trailing suspects over dusty farm roads look simple. It didn’t help that at the time the seed was seized, the Justice Department’s Antitrust Division had an active investigation into Monsanto’s business practices.

  * * *

  • • •

  THE WORKSHOP CONVENED by the Justice Department and the USDA in 2010 in Ankeny, Iowa, had proved that there was significant public support for breaking up big agriculture. The action appeared to have legal grounding as well. Antitrust enforcers have historically been harsher on companies like Monsanto, which expand through acquisitions, than on those that grow more naturally. But after the workshops, the Justice Department released very little information about its investigation. In November 2012, the department quietly dropped the inquiry. The news came as only a short note on Monsanto’s website. The investigations initiated by state attorneys general fizzled as well.

  The Justice Department dropped investigations of other agriculture companies around the same time. Still, it was noteworthy, at least, that the department abandoned its effort to break up Monsanto’s monopoly precisely as it was developing a major economic espionage case on behalf of the company. It may have helped that Monsanto spent more than $6 million a year on lobbying, more than any other agribusiness company, and that it employed a number of former U.S. government officials.

  But while the conclusion of the antitrust inquiry removed one barrier to Monsanto’s cooperation, the company’s lawyers had other reasons to worry about allowing the seized seeds to be tested. With regulators retreating, the agricultural giants had resumed their acquisition spree, and Monsanto and Pioneer were locked in a battle for market share. Their main foes were now each other.

  One battlefront in this war centered on a trade secrets spat far removed from China, involving Pioneer’s use of Monsanto’s Roundup Ready trait in its genetically modified crops. The company accused Pioneer of “stacking” additional traits onto the gene, a tweak the company claimed was not allowed by the licensing agreement. In August 2012, shortly before the airport bust, a jury in Monsanto’s hometown of St. Louis agreed, awarding Monsanto $1 billion in damages. Lawyers for Pioneer vowed to appeal.

  Now the twenty-five thousand seized seeds became a new source of anxiety. Monsanto’s counsel feared that if the seeds were sent out for testing in one batch, Pioneer would learn which seed lines the company had in development. Pioneer’s lawyers had the same concern about Monsanto. As they gobbled up smaller entities in a battle for market share, the agrochemical giants were existential threats to each other in a way that DBN was to neither.

  The other issue was that in any court proceedings, the defense would be entitled to see some version of the results. Neither company wanted to expose sensitive intellectual property to the very people accused of trying to steal it. A number of questions were under debate. Did the federal government have to test all of the seized seeds? What kinds of tests should be done, and what lab should perform them?

  To hash out a solution, Mark worked closely with Jason Griess, an assistant U.S. attorney in Iowa�
��s southern district. In his time as a federal prosecutor, Griess had worked on international drug trafficking cases and biological weapons threats, but he still didn’t quite look the part. A fellow Nebraska native, he was thickly built and bearlike, with a shaved head. He had followed the FBI’s investigation since the beginning, and he had invested enough time in the case that he didn’t want it in jeopardy because of a dispute between the victim companies.

  For a while, the battle over how to test the seeds subsumed the actual trade secrets theft investigation. Then, in April 2013, Monsanto and DuPont ironed out their differences in the stacking suit. In exchange for Pioneer paying licensing fees, Monsanto agreed to throw out the $1 billion jury verdict and give its competitor access to coveted research. Antitrust advocates read the agreement as an ominous sign. In a market with many players, licensing arrangements can raise the overall quality of research and boost competition. In a market dominated by a few giants, they tend to be anticompetitive.

  In the end, Monsanto and Pioneer agreed to go forward with testing in the Robert Mo case if each seed line was assigned a generic code and the seeds were then sent to an independent lab, to limit the chance that either company could glean information about the competition’s products. With the process finally worked out, Mark and Griess sent out 652 seed samples to a Wisconsin laboratory called BioDiagnostics. Then Mark noted the dates of seed conferences, spring planting, harvest time—any events that might draw Dr. Li and his team back to the United States.

  * * *

  • • •

  BACK IN CHINA, meanwhile, talk of assimilating foreign technologies continued unabated. In September 2013, Xi Jinping led the twenty-five-person Politburo on an excursion. Wearing navy blue windbreakers, navy blue trousers, and sensible leather shoes, the officials filed onto a bus with tinted windows and rode to a white-tiled building in Zhongguancun, the city’s tech quarter. It was the eve of National Day, a holiday that commemorated the 1949 founding of the People’s Republic, and the visit to the National Indigenous Innovation Demonstration Zone Exhibition Center was part of a nationalistic media blitz.

  The Politburo holds monthly study sessions for committee members and other government officials on an array of topics. Typically these are led by professors and researchers at the party’s complex in central Beijing. The Zhongguancun visit was the first ever held off-site.

  Inside the center, Xi took the podium. Faced with an international audience in Des Moines the year before, he had talked of international cooperation. Now, as China’s most powerful leader, he stood before a very different crowd. He spoke of technological ascendance and of using science to strengthen China. In the audience sat dozens of men and two women, taking notes. Among them was Shao Genhuo, the farmer’s-son-turned-CEO of DBN.

  Xi urged the audience members to master “core technologies,” a category that encompassed everything from semiconductors to seeds. “We must seize the opportunities presented by this new phase of technological revolution and industrial change,” Xi avowed. “We cannot wait, we cannot watch from the sidelines, we cannot slack off.”

  Afterward, Xi toured the exhibition center. When he came to DBN’s exhibit, he stood next to Shao, watching as a DBN employee in a white lab coat tinkered with a microscope. The state press snapped photos.

  Despite the note of urgency that Xi struck in his speech, DBN’s employees held off on U.S. trips. Months rolled by, and the dates on Mark’s calendar passed uneventfully.

  Ye Jian briefly returned to the United States, but the FBI passed up the opportunity to arrest him, reasoning that a bust would squander any chance of snagging others. Robert traveled to Iowa to attend the World Pork Expo, the Super Bowl for the swine industry, but he stayed away from cornfields. Dr. Li didn’t show.

  The FBI’s investigation of seed company insiders continued. Mark and Griess believed that it was possible that DBN planned to use information gleaned from the seed theft to improve its negotiating position in legal licensing agreements with companies like Stine. But that wasn’t enough to land people like Lily Cheng in jail.

  Mark and Griess considered the visits to test fields growing inbred corn, the UPS packages labeled CORN SAMPLES, and the farms that DBN owned in Redfield, Iowa, and Monee, Illinois. They pondered the bags of commercial seed that Robert Mo had purchased from dealers across the Midwest—including the six bags he bought from Joel Thomas at Crossroads Ag. They analyzed the FBI’s interviews with Kevin Montgomery and other sources across the Midwest, along with the transcripts of Robert’s intercepted phone calls.

  Just a few months earlier, the FBI believed that DBN planned to chase the self on the company’s U.S. farms, by planting bags of seed, letting it grow, and then identifying by height the critical 1 percent that was rogue female inbreds. But as Mark amassed more evidence, he and Griess began to doubt that earlier conclusion. Neither farm appeared to be critical to the reverse engineering effort. The corn Robert Mo had hired a contract farmer to plant at the Redfield farm was all harvested and sold at the end of the season to a local granary. Robert was barely involved in the process, and the granary records checked out. Not much happened with the seed that Kevin planted in Monee, either. Chasing the self would have required several researchers with PhDs in agronomy, and DBN had not apparently sent anyone over for that purpose. Robert had not even tried to co-opt Kevin—and now Kevin was working for the FBI.

  Over time, Mark and Griess pieced together a new operating theory. DBN’s plan had changed somewhere along the way, they concluded. Ye Jian and Lin Yong had collected male inbreds from production fields across the Midwest. But to derive the female inbreds, the men had apparently decided to ship large amounts of seed to China and chase the self there. The company might have hung on to the farms to use them as cover when buying seed, or in the case of the Monee farm to house DBN employees visiting from Beijing.

  As the months ticked by, Mark worried that DBN might have enough information to start reverse engineering. Griess shared his concern. Dr. Li or no Dr. Li, they could wait no longer.

  TWENTY-FIVE

  FALL 2012–SUMMER 2013

  Even as Kevin’s contacts at the FBI told him little about their investigation, he was independently coming to his own conclusions about DBN’s scheme. By noting what his handler at the bureau asked and didn’t ask, he picked up small bits of information. Her questions triggered memories of incidents that hadn’t seemed remarkable at the time. Now they suddenly seemed portentous.

  He deduced that Robert and others at DBN were planning to plant out the hybrids to chase the self and derive the female inbred parent. As he pieced together the details of this reverse-engineering operation, his feelings of betrayal and anger gave way to astonishment at the sheer stupidity of the plan. It wasn’t just the brashness of messing with companies like Monsanto and DuPont. It was the fact that if DBN wanted to steal seed, the approach its executives had chosen was the least efficient one he could imagine. And the notion that U.S. investigators ever thought Kevin was involved with the scheme offended his ego. The plan was apparently not devised by a plant scientist. There was, he knew, a more straightforward way to reverse engineer inbred seed.

  Using this method, Dr. Li and others could have avoided sneaking through fields. All they needed was a single bag of seed for each hybrid they wanted to reverse engineer—or, if they wanted to challenge themselves, a single seed from within that bag. There was a way to determine both the male and the female inbreds through that one seed.* That method would have required a lot of work, but it would also have avoided a lot of risk-taking.

  The lies and obfuscations, the encounters with deputies and other authorities, the speeding off through the ditch: All of that could have been avoided if DBN’s researchers had the necessary breeding knowledge. The thought that they didn’t reinforced a fear he had about the state of modern corn breeding. Because the money was in genetic modification, young breeders were taught the ins
and outs of GM traits—even in China, where GM corn couldn’t yet be legally sold. They could expound on molecular biology while standing on their heads. But the youngsters lacked a command of the basics of corn breeding.

  To Kevin, who remembered when reverse engineering was common practice at seed companies, the faster approach was obvious. Stealing ears off the ground, in particular, struck him as silly. He even briefly wondered: Could DBN’s cornfield antics be a cover for some deeper, more sophisticated operation? But most of the time he just thought the plan was foolish.

  The absurdity of DBN’s plan stuck in Kevin’s mind in December 2012 as he met with Robert on the sidelines of the American Seed Trade Association Seed Expo in Chicago. Held in a seventy-thousand-square-foot exhibit hall at the Hyatt Regency overlooking the Chicago River, the meeting was usually an important networking opportunity for Kevin. The few small seed companies that remained afloat exhibited their work, as did farm machinery outfits and magazines like Seed Today and Seed World. But this year he was distracted by his dealings with DBN.

  He and Robert retreated into one of the less trafficked ballrooms. A few dozen people milled about, chatting by the coffee table or browsing the posters tacked to the wall at one end of the room, which covered such scintillating topics as “Nutrient Accumulation Patterns in Soybean Cultivars Released over 90 Years.” The two men took a seat at an empty table, outside earshot of the other conference-goers.