The opinion of the court was delivered by: Cormac J. Carney United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 1 THROUGH 9 OF THE INDICTMENT AS UNCONSTITUTIONALLY VAGUE
Before the Court is Defendant Dongfan "Greg" Chung's motion to dismiss Counts 1 through 9 of the Indictment as unconstitutionally vague. Mr. Chung argues that 18 U.S.C. § 1831, the Economic Espionage Act of 1996 ("EEA"), is unconstitutionally vague as applied to him because it fails to adequately define the term "trade secret." Accordingly, Mr. Chung argues that the Counts of the Indictment that charge him with violating the EEA and conspiracy to commit those violations must be dismissed. For the following reasons, Mr. Chung's motion to dismiss is DENIED.
Mr. Chung worked at Rockwell International ("Rockwell") and then Boeing, when Boeing acquired the space division of Rockwell. (Indictment ¶ 10.) Mr. Chung worked as a stress analyst on the forward fuselage section of the Space Shuttle from 1973 through 2002. (Id.) Mr. Chung also worked on the Space Shuttle as an independent contractor at Boeing from 2003 through 2006. (Id. ¶ 11.) The Indictment alleges that Mr. Chung, at the request of the government of the People's Republic of China ("PRC"), used his access as an engineer at Rockwell and Boeing to obtain trade secrets and provide them to the PRC. (Id. ¶¶ 21(a)-(d), 22.)
The Indictment identifies eight documents-several of which are marked as proprietary information-that contain the alleged trade secrets. (Id. ¶¶ 5, 25.) These trade secrets pertain to Boeing's Space Shuttle, Delta Rocket, and military cargo plane programs. (Id. ¶¶ 5, 7, 9.) Mr. Chung worked on the Space Shuttle program, but not the Delta Rocket or military cargo plane programs. (Id.) Mr. Chung did not have authorized access to documents pertaining to programs on which he did not work, but he did have secret clearance in connection with his work on the Space Shuttle program. (Id. ¶¶ 4, 6, 8, 13.)
As a condition of his employment, Mr. Chung signed numerous agreements stating that he would not use or disclose proprietary information or trade secrets without authorization. (Id. ¶¶ 14-18.) Mr. Chung also signed a statement that he returned all documents belonging to Boeing at the end of his employment there in 2002. (Id. ¶ 15.) Notwithstanding these assurances, the government alleges that Mr. Chung retained thousands of pages of documents related to aerospace technology and defense in his home and, in response to specific requests from the PRC, Mr. Chung provided trade secrets to the PRC. (Id. ¶ 22.)
A statute is presumed constitutional, and "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Flemming v. Nestor, 363 U.S. 603, 617 (1960). "To avoid being unconstitutionally vague, a penal statute must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' " United States v. Schales, 546 F.3d 965, 972 (9th Cir. 2008) (citing Kolender v. Lawson, 461 U.S. 352 (1983)). " 'The Constitution does not require impossible standards; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' " Id. (citing Hamling v. United States, 418 U.S. 87, 111 (1974)). Finally, a vagueness challenge outside the First Amendment context "must be examined as applied to the defendant." United States v. Jae Grab Kim, 449 F.3d 933, 942 (9th Cir. 2006).
The EEA, under which Mr. Chung is charged, provides:
(a) In general.--Whoever, intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent, knowingly--
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains a trade secret;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or ...