A federal judge has thrown out the wire fraud convictions of a prominent University of Kansas chemistry and engineering professor, ruling that the evidence was insufficient to support them.
But the judge upheld a federal jury’s conviction of Feng “Franklin” Tao for making false statements to KU.
U.S. District Judge Julie Robinson ruled more than five months after the conclusion of Tao's two-week-long trial. It marked the first case to go to trial among some two dozen against academics around the country charging them under a now-abandoned Trump era program called the China Initiative aimed at combating China’s efforts to steal American technology and trade secrets.
Rather than charge them with espionage, the government prosecuted them for the more narrow crime of concealing their Chinese ties from their American employers and in grant proposals.
Tao was accused of concealing his employment as a Changjiang Distinguished Professor at Fuzhou University (FZU) in China from the U.S. Department of Energy and the National Science Foundation, which had awarded him grants, as well as from KU.
Robinson found that while Tao was deceptive in not disclosing his activities at FZU, “there was no evidence that Tao obtained money or property through the alleged scheme to defraud, as required under the wire fraud statute.” (emphasis in the original).
Peter Zeidenberg, one of Tao's attorneys, said in an email that his legal team was gratified the court agreed that Tao "had no intent to defraud the government or KU and that the government agencies, as well as KU, were entirely satisfied with the work he performed."
"This will hopefully drive a final stake through the heart of these China Initiative cases, where the government has claimed that the failure to disclose a relationship to China constitutes federal grant fraud even when the researcher has completed all of the work on the grant to the government’s complete satisfaction," Zeidenberg said.
He said Tao's attorneys were considering their next steps on the single remaining false statement conviction — a statement that was on a form Tao "submitted exclusively to his HR department."
A spokesperson for the U.S. Attorney’s Office in Kansas, which prosecuted Tao, said the office would not have any comment on Robinson's ruling.
Tao began working as a full-time, tenured associate professor in KU’s chemistry and petroleum engineering departments in 2014. While at KU, he secured numerous research grants and received the University Scholarly Achievement Award in 2019, one of just four professors to get that recognition.
In 2019, KU Chancellor Douglas Girod praised Tao for his research contributions and noted that he had 175 publications with over 6,000 citations.
Tao specializes in surface science nanotechnology, which is important in the production of semiconductors, fuel cells, pharmaceuticals and other products.
The judge’s 61-page ruling came in response to Tao’s request to throw out the jury’s conviction. Such reversals are rare.
Federal prosecutors argued that Tao did not seek permission from KU before accepting the position at FZU, didn’t notify KU about his employment there and lied to conceal his employment. They said that in late 2018 he moved to China to work full-time at FZU while falsely telling KU administrators he was in Germany.
“Tao clearly engaged in deceitful conduct,” Robinson wrote. “But the Government did not prove that Tao’s efforts to conceal his affiliation with or activities at FZU University amounted to a scheme to deprive KU, DOE, or NSF of money or property.”
But in upholding his conviction on the false statement count, the judge wrote that “there was sufficient evidence for the jury” to convict.
Tao faced up to 20 years in prison on the wire fraud counts and up to five years on the false statement count.
In January, the Justice Department dismissed a similar case against Gang Chen, a professor of mechanical engineering at the Massachusetts Institute of Technology. The government said it had obtained new information indicating that the Chinese affiliations at the center of the case were not of material importance to the funding agency, the Department of Energy, according to the New York Times.
Similarly, the judge in Tao’s case found that no reasonable jury could have found that the professor's deceit induced the Department of Energy or the National Science Foundation to contract with him.
"There was insufficient evidence to allow a reasonable jury to find that DOE or NSF would not have awarded the grant funds at issue had Tao told the truth," Robinson wrote.
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