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United States of America v. Dongfan "Greg" Chung

September 26, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DONGFAN "GREG" CHUNG, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding D.C. No. 8:08-cr-00024- CJC-1

The opinion of the court was delivered by: Graber, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

February 17, 2011-Pasadena, California

Before: Alfred T. Goodwin, Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

OPINION

Defendant Dongfan "Greg" Chung, a former Boeing engineer who gave technological information to China, appeals his convictions on six counts of violating the Economic Espionage Act of 1996 ("EEA"), 18 U.S.C. § 1831(a)(1), (3); on one count of conspiring to violate the EEA, 18 U.S.C. § 371; on one count of acting as an unregistered foreign agent, 18 U.S.C. § 951; and on one count of making a false statement to federal agents, 18 U.S.C. § 1001. Defendant argues primarily that his convictions were not supported by sufficient evidence.

Alternatively, Defendant contends that he is entitled to a new trial because the government failed to turn over exculpa-tory information in violation of its duty under Brady v. Maryland, 373 U.S. 83 (1963), and because the district court made several erroneous evidentiary rulings. Finally, he challenges the district court's calculation of his offense level under the United States Sentencing Guidelines.

For the reasons that follow, we affirm.

BACKGROUND

A. Investigation and Conviction

Defendant was born in China in 1936 and became a naturalized citizen of the United States in 1972. He began working as a civil engineer at Boeing in 1964. With the exception of a few years spent at McDonnell Douglas, Defendant worked for either Rockwell or Boeing*fn1 until September 2002, when his division relocated and he retired. During his employment with Rockwell and Boeing, Defendant worked mainly as a stress analyst on the forward fuselage section of the space shuttle. After retiring, Defendant returned to Boeing as a contractor in 2003 to help evaluate the crash of the space shuttle Columbia. He remained at Boeing until September 11, 2006, when federal agents searched his home and discovered a trove of Boeing technical documents stored beneath the house.

Federal agents first suspected that Defendant was spying for China during their investigation of Chi Mak, another engineer who worked for a naval defense contractor.*fn2 In October 2005, agents searched Chi Mak's residence and found Defendant's contact information in several of Chi Mak's address books. During a second search of Chi Mak's home in June 2006, agents found a letter dated May 2, 1987, addressed to Defendant from Gu Weihao, who was a senior official with the China Aviation Industry Corporation, a Chinese government ministry. In that letter, Gu Weihao asked Defendant to provide information about airplanes and the space shuttle and thanked Defendant for previously providing unspecified information to China. The federal agents also found what they considered to be a "tasking list" in Chi Mak's home. Although the list itself was not addressed to anyone in particular, it requested information about aviation technologies. Because Chi Mak did not have access to aviation technology, the Federal Bureau of Investigation ("FBI") suspected that the list was meant for Defendant.

Following those discoveries, federal agents began to conduct surveillance and trash searches at Defendant's home. In August and September 2006, agents discovered that Defendant was disposing of Boeing technical documents by hiding them between the pages of Chinese-language newspapers, which he then left out for trash collection.

On September 11, 2006, agents interviewed Defendant and, with Defendant's consent, searched his home. They discovered that Defendant possessed more than 300,000 pages of Boeing and Rockwell documents, many of which related to the space shuttle, Delta IV Rocket, F-15 Fighter, B-52 Bomber, and Chinook Helicopter. Approximately 250,000 pages of those documents were kept in binders in an unfinished storage area beneath Defendant's house. Agents also recovered business cards, letters, briefings, documents related to travel, numbered lists of technical information related to aerospace or the space shuttle program, and Defendant's journals.

A grand jury indicted Defendant on February 6, 2008. After a bench trial, he was convicted on count 1 for conspiracy to commit economic espionage, on counts 2 through 7 for economic espionage, on count 10 for acting as an unregistered foreign agent, and on count 14 for making a false statement to federal agents.*fn3 The district court then sentenced Defendant to 188 months' imprisonment and three years of supervised release. Defendant timely appeals.

B. Evidence Presented at Trial

During the trial, the government presented many of the documents retrieved from Defendant's home. Much of the evidence, however, relates to activities and communications that predate the limitations period for the alleged crimes. The limitations period for all of the charged offenses ran from February 6, 2003, to February 6, 2008.*fn4 We therefore will divide our discussion of the evidence chronologically.

1. Activities and Correspondence Predating the Limitations Period

The government introduced a letter written in 1979 by Defendant to Professor Gu (aka Ku Chen Lung) of the Harbin Institute of Technology in China. In that letter, Defendant states that he sent Professor Gu some graduate engineering course materials, a book, and some magazine articles. In closing, Defendant expressed his wish to contribute "to China's Four Modernizations." Professor Gu sent a letter to Defendant thanking him for the materials. There is no evidence in the record of any further communication between Defendant and Professor Gu.

Also in the record is a series of letters, exchanged in 1985, between Defendant and Chen Qinan, who was project manager of the China National Aero Technology Import/Export Corporation. Those letters largely concern what information Defendant should supply while visiting China for a "technical exchange." Chen Qinan sought information related to the fatigue life and structural design of aircraft and armed helicopters. Defendant, however, offered to provide information about the space shuttle as well, even though he acknowledged that "[i]nformation regarding the space shuttle is classified as secret." He further explained to Chen Qinan that he had only partial information regarding the helicopter's structural design because "that information is controlled by the Department of Defense." In another letter, Defendant expressed an interest in visiting several Chinese aircraft manufacturers and noted his desire to "contribute [his] expertise." Agent Kevin Moberly, the lead case agent assigned to Defendant's case, testified that agents found, in Defendant's home, documents and briefings on laminate slides that were responsive to Chen Qinan's requests.

The government also presented a tasking list from the Nan-chang Aircraft Company, a production factory of the Chinese Ministry of Aviation. Defendant received the list on July 14, 1985, during his visit to the Nanchang plant. The list requests information concerning methods for determining the fatigue life of aircraft and helicopters, including information regarding United States military specifications. Again, Agent Moberly testified that technical documents responsive to the tasking list were found in Defendant's home.

The record also contains an undated letter from Defendant to Chief Engineer Feng of the Nanchang Aircraft Company. In that letter, Defendant stated that he had "attached the answers for the questions that were not answered when I was in Nan[c]hang." He also referred to a list of books that he had collected, and he stated that Zhao Zhen Lan, the San Francisco Education Consul, would arrange for their delivery. In another letter, Defendant referred to 27 manuals that he had sent, and he attached a list cataloguing 24 structure manuals developed by Rockwell's B-1 Division.

The government presented several letters between Defendant and Gu Weihao,*fn5 Defendant's purported "handler." All of those letters, however, predate the limitations period. The first letter from Gu Weihao to Defendant is dated March 25, 1986. After reporting that he had arrived safely in Beijing after his visit with Defendant in Los Angeles, Gu Weihao stated that he now was engaged in research on damage tolerance and expressed his hope that Defendant could "often provide [his] advice in this area."

The second letter from Gu Weihao to Defendant, dated May 2, 1987, was found in Chi Mak's home. In that letter, Gu Weihao wrote that he had asked Chi Mak to visit Defendant and to deliver a small present. Gu Weihao then requested Defendant's assistance on some "difficult technical issues" concerning the design for "trunkline aircraft (150 seats)" and the space shuttle. Specifically, he was interested in obtaining quality control information. He expressed his preference to consult with Defendant in person and suggested a meeting in Guangzhou "to discuss with [him] in a small setting, which is very safe." The letter further reads, in pertinent part:

We'll be responsible for all the expenses of your international travel and stay in Guangzhou. You can discuss the time and route of your trip to China with Mr. Mak in person. . . .

You may use "traveling to Hong Kong" or "visiting relatives in China" as reasons for traveling abroad, or we can ask the "Guangzhou Fine Arts Center" or the "Guangzhou Academy of Fine Arts" to extend an invitation to Mrs. Chung and have Mr. Chung, in the name of accompanying his wife, travel abroad together with her. To sum up, if you have any suggestions or if you have anything that I can help you [with] here, you can have Mr. Mak convey it to me. Normally, if you have any information, you can also pass it on to me through Mr. Mak. This channel is much safer than others.

It is your honor and China's fortune that you are able to realize your wish of dedicating yourselves to the service of your country.

In a third letter, dated April 12, 1988, Gu Weihao informed Defendant that China would soon create the Ministry of Aeronautics and Astronautics Industry. He then wrote:

[W]e are yearning for the enthusiasm and the sincere help from the foreign countries. I profoundly understand what you have in your mind. Therefore, I hope that you will introduce advanced technologies and provide information on advanced technologies. Our perspective will be greatly expanded under the scope of the new ministry. There is no need to limit the scope that we proposed while we were in the United States. Please provide at any time. It is faster and safer by forwarding through Mr. Mak.

In his next letter to Defendant, dated December 12, 1988, Gu Weihao made no requests for information but noted that he had yet to receive a reply to the letters he had written at the beginning of the year. He also sent his regards to Mr. and Mrs. Mak because they had not written him for some time. Defendant eventually wrote back and apologized for taking so long to reply. Defendant did not refer to Gu Weihao's previous requests for information.

In a letter dated July 5, 1992, Gu Weihao reported that he had fully retired that year.

Although Defendant's journal entries show that he subsequently wrote to Gu Weihao on January 4, 1996, on May 12, 1997, and on December 18, 2001, the content of those letters is unknown. Defendant's journals also document that he hosted Gu Weihao in the United States in 1990, 1991, and 1992. The journal entries, however, merely record when Defendant picked up and dropped off Gu Weihao at the airport, where they ate, and what attractions they visited. One entry notes that Chi Mak and his wife spent an evening with Defendant and Gu Weihao.*fn6

Defendant's journals further document that, in April 2001, Defendant traveled to China and gave presentations on the space shuttle. Defendant again traveled to China in September 2002 to attend "National Day" celebrations, but his ...


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