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Judge limits testimony at trial of professor accused of hiding Chinese ties

A federal judge handling a criminal case against a University of Kansas professor accused of failing to disclose his ties to a Chinese government talent recruitment program has denied prosecutors’ request to introduce expert testimony on China’s efforts to gather U.S. technology secrets.

“This testimony … poses a significant risk of stoking Sinophobia — especially given that [the] Defendant, who is Chinese, faces trial amid increasing reports of anti-Asian discrimination and violence since the outbreak of the COVID-19 pandemic — and evoking exactly the kind of negative emotional response that might ‘lure the [jury] into declaring guilt on a ground different from proof specific to the offense charged,’” U.S. District Court Judge Julie Robinson wrote in an order Thursday, addressing the case against Feng Tao, a chemistry professor. “Whether a purpose of his scheme was to benefit the [People’s Republic of China] is irrelevant.”

The ruling comes as the Justice Department’s crackdown on Chinese influence in academia, the so-called China Initiative, has hit a series of hurdles, is beset by criticism that it fosters discrimination against scholars of Chinese origin and is under review by Biden administration officials.

Robinson’s decision to limit the prosecution’s case against Tao comes a week after the Justice Department abruptly dismissed a similar case against a Massachusetts Institute of Technology professor specializing in nanotechnology, Gang Chen.

Prosecutors in the Chen case were vague about the reason for their decision, but said new evidence prompted the government to conclude it could not meet its burden of proof.

Tao, a Chinese-born U.S. resident, was indicted in 2019 on charges that while working on U.S. government-funded research at the University of Kansas, he concealed the fact that he was employed full-time at China’s Fuzhou University.

In her ruling, Robinson said that because the charges against Tao are wire fraud and making false statements in university reports and a grant application, raising issues about the Chinese government’s information-gathering and talent-seeking activities would amount a digression that would complicate and possibly prejudice Tao’s trial.

“All testimony on this topic is inadmissible,” wrote Robinson, an appointee of President George W. Bush.

“[China’s] national industrial policy objectives, and its efforts to obtain foreign technology by ‘lawful and unlawful means’ to achieve those objectives, are of questionable relevance to the wire fraud and false statements charges at issue in this case,” the judge added. “Testimony about [China’s] efforts to acquire foreign technology to achieve its industrial policy objectives risks misleading the jury into thinking this case is actually an economic espionage or theft of trade secrets case.”

Robinson’s ruling was not entirely favorable to the professor, whose trial is scheduled to open on March 21 in Kansas City. She barred the defense from referring to the Justice Department’s China Initiative and from arguing that prosecutors charged Tao with fraud because they couldn’t prove he was a spy.

The judge said, however, that she may permit FBI agents to be questioned about the counter-espionage element of the investigation if it seems to bear on specific evidence introduced at trial.

Robinson also said she will allow prosecutors to offer some expert testimony on the structure and governance of the Chinese university at which Tao was allegedly employed. However, she said there was no need to delve into broader issues about China’s government or policies.

“The jury does not need a lesson on the Chinese political system,” the judge said.

Separately, a Justice Department spokesperson said last week that results of a broader review of the China Initiative will be forthcoming soon.

“Consistent with the Attorney General’s direction, the Department is reviewing our approach to countering threats posed by the PRC government. We anticipate completing the review and providing additional information in the coming weeks,” the spokesperson said.

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