The opinion of the court was delivered by: Cormac J. Carney United States District Judge
The United States of America (the "Government") charged Defendant Dongfan "Greg" Chung with one count of acting as a foreign agent, one count of conspiring to violate the Economic Espionage Act of 1996 ( "EEA"), six counts of violating the EEA, one count of making a false statement to the Federal Bureau of Investigation ("FBI"), and one count of obstructing justice. After conducting a ten-day bench trial in this matter, the Court finds Mr. Chung guilty on all counts except for the count of obstructing justice.
Mr. Chung has been an agent of the People's Republic of China ("PRC") for over thirty years. Under the direction and control of the PRC, Mr. Chung misappropriated sensitive aerospace and military information belonging to his employer, The Boeing Company ("Boeing"), to assist the PRC in developing its own programs. To accomplish his mission, Mr. Chung kept over 300,000 pages of documents reflecting Boeing's trade secret and proprietary information in his home. Mr. Chung sent information that he misappropriated to the PRC through the mail, sea freight, a Chinese agent named Chi Mak, and even the Chinese consulate. On several occasions, Mr. Chung also used the information that he misappropriated from Boeing to prepare detailed briefings that he later presented to Chinese officials in the PRC. The trust Boeing placed in Mr. Chung to safeguard its proprietary and trade secret information obviously meant very little to Mr. Chung. He cast it aside to serve the PRC, which he proudly proclaimed as his "motherland." The Court now must hold Mr. Chung accountable for his crimes.
Mr. Chung, a naturalized United States citizen, worked as an engineer for his entire adult life. Ex. 219-54. At the beginning of his career, Boeing hired him as a stress analyst on the airframe and rotor hub for the CH-47 helicopter. Ex. 302-12. In 1969, Mr. Chung moved to another company, McDonnell Douglas, where he worked as a strength engineer on the wing structure of the DC-10 airliner and on the wing and armament support for the F-15 fighter.*fn1 Id. In 1972 and part of 1973, Mr. Chung returned to Boeing and worked at its facility in Wichita, Kansas on the B-52 Life Extension Program.
Id. In the fall of 1973, Mr. Chung moved to Rockwell International ("Rockwell") in Downey, California and worked there for the next twenty-six years. Boeing acquired Rockwell's space division in 1996. In 1999, Mr. Chung moved to Boeing's plant in Huntington Beach. For most of his career at Rockwell and Boeing, Mr. Chung worked as a stress analyst on the forward fuselage section of the Space Shuttle. Mr. Chung held a secret clearance*fn2 from 1973 until 2002. Ex. 302-11.
In 2002, Boeing moved parts of its Space Shuttle program to Houston, Texas. Mr. Chung declined to move, and Boeing laid him off in September 2002. After the crash of the Columbia orbiter in February 2003, however, Mr. Chung came back to Boeing as a contractor to assist in the evaluation of the crash. He remained at Boeing until September 11, 2006.
Federal agents first suspected that Mr. Chung was spying for the PRC during its 2005 investigation of another engineer named Chi Mak, who worked for a naval defense contractor. Mr. Chung had significant contact with Chi Mak over the years, and the federal agents were concerned that their relationship was more than purely social. Federal agents knew that Chi Mak was using his position and security clearance to pass sensitive naval technology to the PRC. In 2007, a jury convicted Chi Mak of conspiring to export defense articles, attempting to export defense articles, acting as an unregistered agent of a foreign government, and making a false statement. This Court sentenced Chi Mak to approximately twenty-four years in prison for his crimes.
During a search of Chi Mak's home in October 2005, federal agents found address books containing contact information for Mr. Chung. Exs. 353--355. As part of the investigation in the Chi Mak case, Mr. Chung was interviewed on April 24, 2006. Mr. Chung told federal agents he first met Chi Mak in 1992 through a mutual friend "Mr. Gu" (later identified as Gu Weihao of the Chinese Ministry of Aviation), whom he described as an exchange scholar from China. In June 2006, during a second search of Chi Mak's home, federal agents discovered letters to Mr. Chung from Gu Weihao. In one letter, dated May 2, 1987, Gu Weihao asked Mr. Chung to provide information on airplanes and the Space Shuttle and referred to information that Mr. Chung had previously provided to the PRC. Ex. 359.
Following the discovery of the letter to Mr. Chung from Gu Weihao, federal agents conducted surveillance and trash searches at Mr. Chung's home. In August and September 2006, federal agents discovered that Mr. Chung had disposed of technical documents taken from work by secreting them within the pages of newspapers. Tr. 47:14--19, 50:6--8, 54:19--55:22, 63:19--24, 68:9--14, June 2, 2009. The documents included design drawings and diagrams, structural and material specifications, project management data, and engineering modification reports for the Space Shuttle and the International Space Station. Exs. 170--173.
Based on the information found in Mr. Chung's trash, federal agents believed that it was necessary to take a closer look at him and his activities. On September 11, 2006, federal agents interviewed Mr. Chung and searched his home.*fn3 Federal agents were astonished at what they found. Mr. Chung had over 300,000 pages of sensitive and proprietary documents belonging to Boeing. More specifically, federal agents found a veritable treasure trove of Boeing's documents relating to the Space Shuttle, Delta IV Rocket, F-15 fighter, B-52 bomber, CH-46/47 Chinook helicopter, and other proprietary aerospace and military technologies. Federal agents also found numerous letters, tasking lists, and journals detailing Mr. Chung's communications with officials in the PRC. As federal agents sifted through the hundreds of thousands of pages of documents in Mr. Chung's home, the story of Mr. Chung's secret life became clear. He was a spy for the PRC.
The Government presented the evidence that federal agents collected against Mr. Chung to the grand jury, and on February 6, 2008, the grand jury returned an indictment against Mr. Chung. The grand jury charged Mr. Chung with one count of acting as a foreign agent, one count of conspiring to violate the EEA, six counts of violating the EEA, one count of making a false statement to the FBI, and one count of obstructing justice. Mr. Chung waived his right to a jury, and the Court conducted a ten-day bench trial. This memorandum sets forth the Court's findings of fact and conclusions of law.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Mr. Chung is charged with acting as a foreign agent pursuant to 18 U.S.C. § 951, which provides, in pertinent part:
(a) Whoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.
(d) For purposes of this section, the term "agent of a foreign government" means an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official . . . .
To show that Mr. Chung is guilty of acting as a foreign agent, the Government must prove that: (1) Mr. Chung acted in the United States as an agent of the PRC; (2) Mr. Chung failed to notify the Attorney General of the United States that he would be acting in the United States as an agent of the PRC prior to so acting;*fn4 and (3) Mr. Chung acted knowingly and knew that he had not provided prior notification to the Attorney General. The Government proved each of these elements beyond a reasonable doubt.
The extensive library that Mr. Chung maintained and concealed at his home is incredibly incriminating evidence of his service as a foreign agent for the PRC. This library was staggering in terms of its size and content. It contained over 300,000 pages of trade secret and proprietary information belonging to Boeing. For instance, Mr. Chung had over 700 documents related to the Shuttle Drawing System ("SDS"), a system that contains specifications created by Rockwell and Boeing engineers for performing processes related to all aspects of the Space Shuttle. Some SDS documents were found hidden in newspapers under stairs on the day of the search, and others were recovered from Mr. Chung's fireplace and garbage. On one of the SDS documents, Mr. Chung wrote Chi Mak's name, in Chinese, as well as Chi Mak's work and home phone numbers. Ex. 19-3. In addition to the documents themselves, Mr. Chung created an index of the SDS documents on his home computer. Ex. 41.
The SDS was, and is, export-controlled. Tr. 129:10--15, June 5, 2009. Engineers must have a password and a need to know in order to access to the system. Id. 129:3--4. Mr. Chung signed an SDS access agreement in 2001 in which he confirmed that he understood that the SDS was export-controlled. Ex. 70.
Mr. Chung's library also consisted of other Space Shuttle-related documents, many of which contain export-controlled or proprietary information. These documents include detailed Space Shuttle structure diagrams, Space Shuttle specifications, as well as an organization chart containing the names and contact information for Boeing's stress and structural specialties organization. Ex. 15. Mr. Chung possessed an export-controlled Space Shuttle parts list printed from the SDS. Ex. 19. Mr. Chung kept a Space Shuttle tutorial marked with export restrictions. Ex. 31. Mr. Chung had close to a thousand pages of documents relating to the Ku-Band Antenna on the Space Shuttle, some of which are proprietary. Exhibit 68; Tr. 39:13--22, June 9, 2009. A portion of the pages within these documents are Ku-Band project quotes that are marked "Trade Secret," "Boeing Proprietary," "Confidential," "Privileged." Ex. 68-483--68-502. He had a document regarding the Space Shuttle hatch. Ex. 137. He possessed proprietary engineering data relating to the lower forward fuselage of the Orbiter Vehicle 102. Ex. 139. He had Rockwell manuals, including a Rockwell design stress analysis manual on the Orbiter Vehicle 102 and a Rockwell manual titled "Space Shuttle Program Thermodynamic Design Data Book, Thermal Control System, Book 5." Exs. 143, 145. Mr. Chung kept proprietary information regarding the X-37 space vehicle. Ex. 85; Tr. 66:16, June 10, 2009. Mr. Chung also had proprietary documents concerning the thermal protection system on the International Space Station. Ex. 87; Tr. 139:25--140:8, June 5, 2009.
Mr. Chung's library contained a variety of information on other wide-ranging military topics, too. Mr. Chung had proprietary documents related to the F-15 fighter and the CH-46/47 Chinook Helicopter. Exs. 25, 86, 125, 136, 141. Mr. Chung also had documents relating to the B-52 bomber, which, as information regarding a weapons system, is subject to export-control laws, Ex. 124, and B-1 manuals, which specified that they could not be shared with organizations other than Rockwell or selected federal agencies. Exs. 98--101.
Mr. Chung's library also provided an answer to a perplexing question: why did he take all of this sensitive Boeing information home? The undeniable answer provided by the numerous letters, tasking lists, and journals is that he was a spy for the PRC. Indeed, these documents tell a very disturbing story of his betrayal of Boeing's trust.
In the 1970s, as part of its "Four Modernizations" program to improve its military and other industries, the PRC*fn5 began to undertake efforts to acquire scientific information and technology from the West. Mr. Chung had a profound desire to contribute to China's Four Modernizations, and did so by sending materials via sea freight to Professor Chen Lung Ku of the Harbin Institute of Technology. Ex. 274. Professor Ku thanked Mr. Chung for his efforts profusely. Professor Ku wrote, "[y]ou have spent so much time to reorganize the notes from several years ago; copying and finding the information that could be needed by us, and you have actively put in your efforts towards the Four Modernizations of the motherland. . . . We'd like to join our hands together with the overseas compatriots in the endeavor for the construction of our great socialist motherland." Ex. 278-3.
Mr. Chung also agreed to return to the PRC in 1985 to conduct a "technical exchange" on topics requested by Chen Qinan, a project manager of CATIC. Exs. 259-261, 266. Again, Mr. Chung was eager to help ...