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U.S. Magistrate Judge Says Zhang Must Stay in County Jail—for Now

By Sharon Simonson

U.S. District Court in downtown San Jose

SAN JOSE—A Chinese professor accused of economic espionage and theft of trade secrets from two Silicon Valley technology companies will remain in the Santa Clara County jail until at least June 24.

U.S. Magistrate Judge Nathanael Cousins told Hao Zhang’s defense attorneys June 10 that he would reconsider the defendant’s status but that he needed stronger proof that Zhang stood to lose personally in the event of his flight to evade the federal charges.

Zhang was arrested May 16 at the Los Angeles International Airport after federal agents boarded his plane from China as it remained on the tarmac. He is accused of stealing trade secrets with commercial and military applications from a former employer in conspiracy with five other Chinese scientists and the Chinese government. He is a professor at Tianjin University in China.

Zhang, who earned his doctoral degree in electrical engineering from the University of Southern California in 2006, had been issued a U.S. tourist visa to speak at a Phoenix, Arizona, symposium. He was traveling with his wife.

At the urging of federal prosecutors and the Federal Bureau of Investigation, a Los Angeles magistrate judge ordered he be held without bail, citing flight risk, and sent to San Jose, where he and five other defendants were indicted by a federal grand jury April 1. The indictment and arrest warrant were sealed from public view until after Zhang’s arrest.

Palo Alto criminal defense attorney Thomas J. Nolan offered the court three alternatives to Zhang’s continued detention in jail, including a Mountain View home surrounded by armed guards and the Palo Alto house of a rabbi who also agreed to be Zhang’s custodian.

“I take the position that his release is essential for his defense,” Nolan told the court. “The Santa Clara County jail (is) an unsafe and impossible place for him to defend himself.”

But Judge Cousins said the alternatives did not persuade him that Zhang would not be subject to flight. “What is not proposed is any personal commitment by the defendant,” he said.

Zhang’s tourist visa also has been revoked, raising the possibility that were he released, he would be deported by the U.S. Department of Homeland Security—exactly the outcome prosecutors seek to avoid. The judge said he was unsure if he had the legal authority to order a halt to Zhang’s deportation, another hurdle the defendant’s counsel must overcome.

“Ultimately, there might be a discussion between (the U.S. Department of) Justice and DHS as to how they may want to proceed,” Cousins said.

Law enforcement officers escorted Zhang, who is 36-years-old, to court in handcuffs, leg-irons and a bright orange Santa Clara County Department of Corrections tunic. The defendant’s face was pale, but not drawn. He wore metal-framed glasses and his black hair was parted to one side. Upon entering the courtroom, Zhang appeared to acknowledge his long-time mentor Eun Sok Kim, chair of the USC Ming Hsieh Department of Electrical Engineering, who sat in the courtroom gallery along with a small group of mostly young people who appeared to be attending in Zhang’s support. Kim testified at the hearing on his former student’s behalf.

Yang Shao, a certified Mandarin court interpreter, translated the hour-long proceedings for Zhang. (Shao is also a trustee at the Fremont Unified School District.)

Nolan accused the federal government of “luring” Zhang to the country by issuing him a tourist visa even as it had an arrest warrant in hand. In a first public defense of Zhang, he argued that prosecutors’ history of success in proving trade-secret theft and economic espionage was short. “These cases are not what they look like at the beginning. The government relies on the company. They are taking the position of the company. They don’t do their own independent inquiry, and I can bring testimony to that effect,” he said.

“We are not re-trying those other trials here,” the judge replied.

Zhang and fellow Chinese citizen Wei Pang, who was also indicted April 1 but has not been arrested, are both full professors at China’s Tianjin University. Tianjin University is a leading PRC Ministry of Education University and one of the oldest universities in China, according to the U.S. government.

Pang worked for Avago Technologies Ltd. in Fort Collins, Colo., until the end of June 2009. Hao Zhang worked for Skyworks Solutions Inc. in Massachusetts until May 2009. Huisui Zhang, who was also indicted, worked for Micrel Semiconductor in San Jose.

Nolan, of law firm Nolan Barton Bradford Olmos LLP, specializes in defending high-tech executives and employees from allegations of white-collar crime including trade-secret theft and economic espionage—theft of trade secrets in expectation of benefitting a foreign government, foreign instrumentality or foreign agent.

Besides the Nolan law firm, Alston & Bird LLP attorneys William “Mitch” Mitchelson Jr. and Michael L. Brown, both former federal prosecutors, and Yitai Hu, an intellectual property litigator who specializes in trade secret disputes, are representing Zhang.

A status hearing in the case is scheduled for June 15 before U.S. District Court Judge Edward J. Davila.

Photos by Sharon Simonson

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