The Scientist and the Spy

by Mara Hvistendahl

  WINTER 2015–2016

  Kevin expected that when Robert’s case finally went to trial, he would be called as a witness. As the trial date neared and he learned more about the investigation of DBN, he reflected on some of the oddities in his relationship with the company. He thought back on the deflections, the unanswered emails, the feeling that he was swept aside whenever he tried to make serious progress on his assigned tasks. He recalled the attempts during his Beijing lab visit to prevent him from asking certain questions. He thought about Robert’s lack of interest in the experimental hybrids growing on the Monee farm. Finally, it dawned on him that the Monee hybrids were a ruse. His participation had helped DBN maintain a front of legitimacy. He was a useful stooge.

  He felt betrayed. All of the time he had spent mining his contacts and poring over fortune cookie messages was for nothing. He realized that his disposition as a scientist, always interested in finding an empirical solution, had led him to overlook warning signs, leaving him prone to manipulation. His ego hadn’t helped. He had been seduced into thinking that a major Chinese agricultural company might actually be interested in the seeds he had developed in his backyard. He was so focused on the prospect of commercializing some of his seed lines that he ignored the signs that he was being played.

  He tried to focus on breeding again, turning his attention to his backyard research plot. He worked on an ambitious project to breed corn that could tolerate cold weather during germination. A friend in Texas refrigerated seeds in thirty-eight-degree water, let them soak for three weeks, and shipped the seedlings that survived to Kevin, who transplanted them into his plot and monitored their growth. Kevin later “selfed” the best plants, or turned them into inbreds, with the goal of crossing pairs of inbred parents to make hybrids. He did this all without chemicals. To discourage ground squirrels from digging up seedlings, Kevin scattered mothballs around the plot. They dotted the soil like marshmallows on a chocolate cookie.

  Kevin’s efforts ran in opposition to the general trend in agriculture. As agribusiness companies grew larger and more industrial, the variety of seeds available to farmers had decreased. They had to make do with planting the same seed whether they were in Illinois or Nebraska. And here Kevin was developing seeds for specific weather conditions, and then in some cases hand-planting them.

  By then the number of global seed companies was dwindling from six to four. DuPont had announced that it was merging with the chemical company Dow. Monsanto executives were contemplating a similar deal with the German conglomerate Bayer. Some of Kevin’s neighbors prided themselves on buying American seed. Now, as American companies joined with others beyond their borders, it wasn’t even clear what that meant. Multinationals’ ultimate allegiance was to their shareholders, not to Washington.

  One of Kevin’s old classmates was caught up in this shift. At the inception of the corn theft investigation, William Niebur had overseen DuPont Pioneer’s Asia operations. He told an agricultural reporter that China was “unlike any other environment in the world when it comes to intellectual property.” Then, in February 2016, he confused industry observers by becoming CEO of the Chinese seed company Origin Agritech. The company brokered a licensing deal with Pioneer and prepared to open its first branch outside China, in Des Moines. Chinese companies, too, were becoming global in ways that tested traditional alliances.

  One trend was universal: As the companies grew, they became even more litigious. Kevin’s 1980s brushes with flashlight breeding had made him wary of messing with other companies’ intellectual property, and he felt certain that he would have walked away the minute it became clear that DBN was trying to reverse engineer seeds. Kevin figured that Robert had not trusted him from the start, that his DBN contact had intuited his blunt honesty and lack of talent for spy craft and decided not to make him part of the scheme. But there were some breeding efforts that fell into a legal gray area. Kevin knew that the FBI, like the multinational seed companies, was generally not interested in nuance. He felt lucky that his work had stayed squarely on the margins of the operation.

  THIRTY-SIX

  WINTER 2015–2016

  Robert looked on, resigned, as Dr. Robert Leonard took the stand. On one side of the courtroom was an empty jury box, which would soon be filled with the Iowan office clerks and teachers and salesmen tasked with deciding his fate. His trial date was a month away. Following his treatment at MD Anderson, his sarcoma had gone into remission. There was a risk that it could come back in his groin or could spread to his lungs, but for the moment the cancer was the least of his worries.

  As the trial approached, his lawyers left no argument unexplored. After charges were dropped in Mo Yun’s case, they had tried to squeeze every last piece of evidence out of the U.S. attorney’s office—including the Orville Redenbacher boxes that had been seized by CBP. They also launched a valiant effort to get evidence excluded in the case. In one filing, they pointed to the twenty-two congresspeople’s inquiry in the wake of the Sherry Chen case about whether federal investigators and prosecutors singled out Asian Americans. They quoted from the Newsweek article by Jeff Stein calling Robert one of the “locusts in a swarm,” and referenced the warrant application in which Mark Betten had suggested that Robert and Lily Cheng’s conversing in Mandarin was suspicious. And they mentioned an offhand comment from Joel Thomas, the owner of Crossroads Ag, that Robert had seemed suspicious because of his ethnicity and because he spoke accented English.

  So explosive was the atmosphere surrounding economic espionage investigations, Robert’s lawyers argued, that his case was at risk of being marred by racism and xenophobia. The argument convinced Judge Rose, who forbade unnecessary mention of Robert’s ethnicity and nationality at trial. Mere mention was too loaded, because that ethnicity was Chinese.

  But the other motions brought by the defense failed. And Judge Rose’s checkered record with immigrants, combined with her propensity to hand out long sentences, did not bode well for Robert.

  Robert’s lead attorney, Mark Weinhardt, knew that the prosecution had witnesses—sheriff’s deputy Cass Bollman, Crossroads Ag owner Joel Thomas, Kevin—who could place Robert in cornfields and seed stores. He knew that Jason Griess and the other prosecutors would give the jury transcripts of the incriminating conversations captured as Ye Jian and Lin Yong drove across the Midwest in the rented Tahoe, seeking out cornfields. Going into others’ fields. IP theft. Any one term is very severe. . . . Others think we are spies sent from China. . . . We are surely considered as such. If Ye Jian and Lin Yong knew they were committing a crime, it seemed likely that Robert did, too. But Robert’s lawyers sensed an opening. Perhaps they could discredit the Tahoe conversation with help from a colorful expert witness. They were in court today so that Judge Rose could determine whether he would be allowed to testify.

  Robert Leonard had once been the lead singer in the greaser revival band Sha Na Na. At Woodstock in 1969, he belted out a cover of “Teen Angel,” wearing a gold suit open over a bare chest. Sha Na Na opened for Jimi Hendrix, the Kinks, the Grateful Dead, and Bruce Springsteen, and performed with John Lennon at Madison Square Garden. By the time the group appeared in the movie Grease, Leonard had left to pursue an academic career. He eventually became a professor at Hofstra University in Hempstead, New York, where he specialized in the field of forensic linguistics, an area of language analysis used in solving crimes.

  Now a bespectacled man in his sixties, Leonard explained on the stand that he helped juries make sense of language, much as a radiologist might help them understand an X-ray. He might, for example, match a ransom note against the writings of an accused murderer by observing that the suspect frequently left out apostrophes in contractions like cant and dont, and that so, too, did the killer. Leonard was esteemed within his field and was frequently called as a witness in federal cases, though the expert testimony he gave in some cases seemed tenuous. He had once been hired by the defense in a federal case again
st a man accused of having sexually explicit conversations with an undercover agent posing as a fourteen-year-old girl. Leonard testified in a pretrial hearing that because the undercover agent did not properly mimic the language of a teenage girl, the man may have believed he was chatting with an adult woman. The judge threw out that testimony, on the grounds that Leonard was not an expert on fantasy role-play. But for Robert’s lawyers, he was worth a try. The charges against Robert also came down to language—in the form of hours and hours of intercepted audio. His lawyers hoped that some of this dialogue might be dismantled using forensic linguistics.

  In an earlier hearing, Judge Rose had acknowledged that there was “some weirdness” to the Tahoe conversation. What criminal, worried about being caught, meticulously lists the crimes he is committing? And when Ye Jian returned to the United States several months after the airport bust, why did the FBI not arrest him? Why, if he was a target in the investigation, was he allowed to return to China?

  The answer, the defense planned to suggest at trial, was that Ye Jian and Lin Yong were agents of the U.S. government, co-opted in service of the investigation. Either that or they were trying to get recruited as U.S. government agents. To succeed with this line of argument, the defense didn’t need to prove that the men were in fact working for the FBI. They merely needed to poke enough holes in the government’s argument to instill doubt in the minds of the jurors.

  If admitted as an expert witness, Leonard would take this smidgen of doubt and give it academic backing. Because he didn’t speak Mandarin, he had hired a former U.S. Census Bureau linguist named Yuling Pan to help him analyze audio from the case. Robert watched as Leonard explained on the stand that Chinese is diglossic, meaning that distinct variants are used for formal situations and casual conversations. Together he and Pan determined that the Tahoe conversation was an odd mixture of “high” Mandarin, used in formal or literary settings, and “low” Mandarin, used in casual conversation. When a bird dive-bombed the SUV, Leonard said, Lin Yong and Ye Jian had been speaking in high, stilted Mandarin—suggesting a rehearsed conversation. The surprise of seeing gray excrement splatter across the windshield jolted them into a more normal dialogue. “They snap into L, spontaneous conversation,” the linguist explained, “and they talk about the bird and they make jokes about it and the dive-bombing, and then they go right back into H again.” Expert witnesses are not allowed to give opinions, but the implication of Leonard’s testimony was clear: The incriminating portion of the conversation was staged.

  Robert watched in silence. Every time he shifted his position or crossed his legs, his pant legs slid up, revealing the clunky ankle bracelets that tracked his every move. He listened as Leonard and a prosecutor had a nonsensical exchange about the Mandarin word yinwei, which means “since” or “because.” The prosecutor tried to make analogies to English. Leonard resisted; Chinese was different, he maintained, but he couldn’t offer details on precisely how. Robert thought that the argument that Lin Yong and Ye Jian were government agents was dubious. He actually rather liked Lin Yong. And here in the courtroom were two men tussling over a language neither one spoke. It was a surreal twist in a case that Robert felt had been characterized by misunderstandings throughout—starting with the image of the man in a field, wearing a suit.

  Judge Rose ultimately sided with the prosecution, ruling that Leonard could not testify. Putting him on the stand at trial, she noted, would bring a risk of “confusion and waste of time.” And with that, the most imaginative defense Robert’s legal team had left vanished.

  * * *

  • • •

  NOT LONG AFTERWARD, the U.S. attorney’s office offered Robert a plea deal. Conspiracy to steal trade secrets carries a maximum sentence of ten years in prison and a $250,000 fine, but in exchange for a guilty plea, prosecutors would keep it to five years in prison, with no fine.

  Robert considered the offer. He had closely watched another case involving DuPont, in which two men were accused of stealing the company’s process for producing titanium dioxide, a whitener found in everything from house paint to Oreo cookies. A jury in California had convicted both men. The lead perpetrator, a Malaysian national of Chinese descent, was sentenced to fifteen years in prison—the same sentence handed down to Boeing engineer Greg Chung for stealing rocketry secrets. And that had happened in San Francisco, a progressive place with a large Chinese-American population, where people were presumably less prone to leap to assumptions because of a person’s ethnicity. His lawyers had explained to him the risks of facing a jury in Iowa. In addition to racism, he would be up against a seed company that some farmers still considered local, despite it being owned by DuPont.

  Because Robert had decided that the American justice system was rigged, he believed that a trial would merely delay his inevitable conviction. Years earlier he had transformed himself from a scientist into a businessman. What was a plea arrangement but another business transaction? He decided to take the deal.

  The agreement did not cover restitution, and Robert learned that following his sentencing he might be required to pay Pioneer and Monsanto large sums of money. And because the federal government alleged that they were purchased as part of the conspiracy, DBN’s farms in Illinois and Iowa would be forfeited—notices of possession attached to their front doors, the weeds left to grow even longer, vandals all but invited back in. But Robert would, at least, be guaranteed a shorter prison sentence.

  On January 27, 2016, the two sides gathered in court again. Four and a half years after Robert was first found in a field, and two years after his arrest, Judge Rose laid out his rights one last time. If he went to trial, she noted, he would have the right to review all the evidence that the U.S. government had against him. He could choose not to say anything or he could present his own defense.

  “If you plead guilty here today, you give up all of those trial rights,” she concluded. “There will never be a trial on this matter. Do you understand that?”

  “Yes, Your Honor.”

  Then she asked, “Formally and for the record, how do you plead to Count 1 of the fourth superseding indictment, guilty or not guilty?”

  “Guilty.”

  THIRTY-SEVEN

  FALL 2016

  At 9:00 A.M. on the day of Robert’s sentencing, the stiff wooden benches in the courtroom gallery were full. With the exception of a retiree who showed up in jeans and sneakers, clutching a book, most of the onlookers had a close connection to the case. They kept to their respective sides in the gallery, like guests at a wedding—friends of the prosecution to the right, friends of the defense to the left.

  On the prosecution side, Mark Betten chatted with other law enforcement officers about where they’d gone for drinks the night before. He was jovial, as if settling in to watch a film. For Mark, Robert’s sentencing marked the culmination of years of hard work. His gaze eventually fell on Jason Griess, who sat at a heavy oak table, shuffling papers and talking in a low tone with the other prosecutors. He had grown a thick beard in the preceding months. “Like Grizzly Adams,” Mark whispered to the guy next to him, chuckling.

  At the table across from Griess was Mark Weinhardt, with his bow tie and monogrammed attire. The two attorneys looked like actors who had been cast in the wrong roles: Weinhardt resembled a straitlaced prosecutor, while Griess looked like a fiery defense attorney.

  Robert sat next to Weinhardt, wearing a gray suit and a red tie. Because he no longer needed frequent treatments at MD Anderson, Judge Rose had allowed him to move back in with his family in Florida on supervised release. He had returned to Boca Raton to find his backyard garden neglected, his fruit trees dying. The damage to his children was even more profound. His teenage daughter had suffered emotionally with all the upheaval brought on by his case. Now, at this crucial moment, he and Carolyn had decided to keep the kids away from the drama. They were awaiting the decision back in Florida, far from the courtroom. He would h
ave to face his sentence alone.

  Judge Rose took her seat and called the courtroom to order. She reviewed the evidence before the court, looking down at her notes as she spoke. Robert’s guilty plea hadn’t stopped the deluge of filings, and the exhibits the attorneys had sent her ahead of sentencing ran to more than twenty-five hundred pages. Prosecutors tried to back up their claim that Pioneer and Monsanto had suffered steep losses because of the stolen seeds. The defense, meanwhile, submitted letters of support from Robert’s friends, family, and even the security guards who had watched him during his house arrest, who apparently never suspected the dark thoughts he harbored about vampires sucking the life out of him. (“In my forty-three years in public and private law enforcement security work, I have never dealt with a more respectful or compliant individual,” one read.) If Judge Rose had ever relished inserting herself into lawyers’ work, as her Hulk email exchange suggested, she had lost some of that energy over the duration of this case. She sounded weary.

  Griess listened carefully as she spoke. In securing a plea, the U.S. attorney’s office had stopped the drain of resources and obtained a conviction. He and other prosecutors had pushed the defense to the limit, to the point where the lawyers had called a former rock star to the stand to pursue a line of reasoning that Griess found highly specious. And yet, on a personal level, Griess was bothered by the abrupt conclusion of the case after investing years of his life in it. He funneled all the energy he had left into drafting a two-hundred-page memo, arguing for giving Robert the maximum sentence allowable under the plea deal: five years in prison.

  By contrast, Weinhardt asked that Robert be put on probation and given “draconian community service obligations.” A sentence restricted to community service would allow him to stay with his family and get sufficient medical care. It was an unusual request, Weinhardt noted, “but this is in so many ways an unusual case and in so many ways an unusual individual.” Another factor made the request particularly urgent: Because Robert was not a U.S. citizen, a term of more than one year would trigger his deportation upon release.