By Sharon Simonson
A U.S. magistrate judge has warned the U.S. departments of Justice and Homeland Security that he would recommend dismissal of criminal charges against Chinese Professor Hao Zhang if federal immigration authorities sought to detain Zhang again in relation to alleged visa violations.
U.S. Magistrate Judge Nathanael Cousins said the federal government could pursue immigration charges at a later time. But, relying on a July 23 ruling by the U.S. Ninth Circuit Court of Appeals, Cousins said that during Zhang’s preparations for trial for conspiracy, trade-secret theft and spying to benefit the Chinese government, immigration authorities could not detain him with a stated goal of deportation even as the U.S. Justice Department proceeded toward trial.
“If the government places Zhang back in immigration detention, thereby jeopardizing this court’s ability to try him, then this court will craft an appropriate remedy, which will likely be a recommendation to dismiss the indictment,” Cousins ruled July 28.
Zhang is accused of stealing trade secrets and conspiring to steal trade secrets for his own benefit and the Chinese government’s from Avago Technologies Ltd. and Skyworks Solutions Inc., two U.S. semiconductor companies with Silicon Valley ties.
Federal law enforcement agents arrested him May 16 at Los Angeles International Airport as he arrived from China with his wife. He was traveling on a one-year tourist-business entry visa issued April 15 by the U.S. State Department. He was evidently unaware that a sealed arrest warrant had been issued April 1 for him and five other Chinese citizens, including two men who studied electrical engineering at the University of Southern California at the same time as Zhang.
Cousins had ordered Zhang released from federal custody on July 8 after overseeing a detention hearing that spanned four court sessions over a period of weeks. Federal prosecutors argued that the risk of flight was too high for Zhang to be out of custody. His attorneys said that he could not receive a fair trial if he were in jail, in part because the proceedings may last years based on previous, similar prosecutions.
To sanction Zhang’s release, Cousins required a $500,000 bond secured by the equity in four Tampa, Fla., homes owned by the aunt of the man who is married to Zhang’s sister and $225,000 in U.S.-located retirement and investment savings benefitting Zhang and his wife. That includes funds in a 401(k) retirement account that Zhang accrued during his Skyworks employment, which ended in 2009.
Cousins also ordered that Zhang be confined to a Mountain View home where he would be electronically monitored and prohibited from travel other than for medical care and visits to his attorneys and the courthouse.
His defense attorneys had expected that he would be released July 8. Instead, he was kept overnight at the Santa Clara County Main Jail, where he had been since the end of May. The next morning, jail authorities turned him over to the U.S. Marshals, who then delivered him to U.S. Immigration and Customs Enforcement agents, who took him to the Yuba County Jail. After spending the weekend in Yuba County, Zhang was taken to the San Francisco office of U.S. Customs and Border Patrol on July 13, where he was ordered deported.
“The government has undertaken a series of calculated actions in this case, which threaten Dr. Zhang’s constitutional rights and the authority of this Court,” Zhang attorney Daniel Olmos of Nolan Barton Bradford & Olmos said in a July 24 memorandum to Magistrate Cousins.
As of early afternoon July 29, based on Cousins’ orders, Zhang had been released from federal custody and was traveling to the Mountain View home where he is expected to live for at least the next several years.