United States v. Yu Xue ( 2022 )


Menu:
  •                                      PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    Nos. 21-2227 & 21-2228
    _____________
    UNITED STATES OF AMERICA,
    Appellant in No. 21-2227
    v.
    YU XUE, a/k/a JOYCE
    ____________
    UNITED STATES OF AMERICA,
    Appellant in No. 21-2228
    v.
    TAO LI
    ____________
    On Appeals from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Nos. 2:16-cr-00022-001 & 2:16-cr-00022-002)
    District Judge: Honorable Joel H. Slomsky
    ____________
    Argued: June 8, 2022
    ____________
    Before: CHAGARES, Chief Judge, AMBRO and FUENTES,
    Circuit Judges
    (Opinion filed: August 2, 2022)
    ____________
    Robert J. Livermore [ARGUED]
    Robert A. Zauzmer
    Office of United States Attorney
    615 Chestnut Street
    Suite 1250
    Philadelphia, PA 19106
    Counsel for Appellant
    Michael Dearington [ARGUED]
    Peter Zeidenberg
    ArentFox Schiff
    1717 K Street, N.W.
    Washington, DC 20006
    Counsel for Appellee Yu Xue
    John N. Joseph [ARGUED]
    Abraham J. Rein
    Post & Schell
    1600 John F. Kennedy Boulevard
    Four Penn Center, 14th Floor
    Philadelphia, PA 19103
    Counsel for Appellee Tao Li
    2
    _____________
    OPINION OF THE COURT
    _____________
    CHAGARES, Chief Judge.
    Defendant Yu Xue was formerly a scientist at
    pharmaceutical company GlaxoSmithKline (“GSK”). While
    still employed at GSK, Xue formed a pharmaceutical company
    with defendant Tao Li and others and proceeded to steal a
    number of GSK documents containing trade secrets. Xue and
    Li each pled guilty to a single count of conspiracy to steal trade
    secrets, in violation of 
    18 U.S.C. § 1832
    (a)(5). The
    Government, at sentencing, requested that the District Court
    apply an enhancement under the United States Sentencing
    Guidelines (the “Guidelines” or “U.S.S.G.”) based on the
    “loss” attributable to the defendants’ conduct. While it is
    undisputed that GSK did not suffer an actual monetary loss as
    a result of the trade secret theft, under the commentary to
    U.S.S.G. § 2B1.1, the definition of “loss” also includes losses
    that the defendants intended. The District Court, however,
    declined to apply an enhancement based on the intended loss
    amount, finding that the Government failed to establish the
    defendants purposely sought to inflict a pecuniary harm on the
    victim, GSK.
    The Government appeals and challenges the District
    Court’s decision not to apply the enhancement. Because we
    conclude that the District Court did not err in interpreting the
    Guidelines or in its factual findings, we will affirm.
    3
    I.
    Until Xue’s arrest in 2016, she was a scientist employed
    by GSK at its research facility in Upper Merion, Pennsylvania.
    GSK is a global pharmaceutical company that researches and
    develops vaccines, medicines, and consumer healthcare
    products. While Xue was still a GSK employee, she formed a
    pharmaceutical company in China called Renopharma with Li
    and others. Xue stole approximately 200 GSK documents,
    some of which contained trade secrets, and sent them to her co-
    conspirators for the benefit of Renopharma. The stolen
    documents concerned pharmaceutical products under
    development, research data, and development and
    manufacturing processes. At the time of the defendants’
    arrests, Renopharma had neither made a profit nor developed
    or sold any products using GSK’s information.
    The defendants were charged in a superseding
    indictment alleging that they engaged in a scheme to steal trade
    secrets from GSK. Pursuant to plea agreements with the
    Government, both Xue and Li pled guilty to a single count of
    conspiracy to steal trade secrets, in violation of 
    18 U.S.C. § 1832
    (a)(5). The plea agreements specifically provided that
    there was “no agreement between the parties as to fraud loss
    under the Sentencing Guidelines” and that “the Court will
    determine the fraud loss . . . prior to imposing a sentence.”
    Appendix (“App.”) 102, 198.
    After accepting the defendants’ guilty pleas, the District
    Court held a three-day evidentiary hearing to determine the
    “loss” amount attributable to the defendants’ conduct under the
    4
    Guidelines. We set forth a summary below of the evidence
    introduced at the hearing. 1
    The Government’s appeal focuses on three categories of
    stolen information related to HER3 monoclonal antibodies,
    GSK development platforms, and specific GSK products under
    development. While at GSK, Xue researched a monoclonal
    antibody known as HER3, which was intended to treat certain
    forms of cancer. 2 Some documents created by Renopharma
    also discussed HER3 products. According to the Government,
    one of those documents showed that the defendants deleted
    references to GSK and replaced them with references to
    Renopharma. The defendants maintain, however, that they
    never intended to develop a HER3 product.
    The next type of stolen information concerned three
    GSK platforms. A platform is a set of standardized procedures
    1
    The Government called five witnesses: (1) FBI Special Agent
    Andrew Haugen; (2) Dr. Joseph Tarnowski, Senior Vice
    President of GSK; (3) Dr. Joseph Villafranca, a scientific
    expert; (4) Dr. Chester Meyers, a second scientific expert; and
    (5) Dana Trexler, an economic expert. The defendants called
    two witnesses: (1) Dr. Jeffrey Field, a scientific expert; and (2)
    Dr. David Blackburn, an economic expert. The court also
    received a number of documents as exhibits during the
    evidentiary hearing, including documents stolen from GSK,
    emails and documents prepared by the defendants, and expert
    reports on the amount of loss and nature of the trade secrets.
    2
    Monoclonal antibodies are proteins that are made in a
    laboratory and used to treat “a variety of serious diseases,
    including cancer, asthma, autoimmune disorders, and
    Alzheimer’s disease.” Gov’t Br. 8–9.
    5
    used by GSK to develop monoclonal antibodies and other
    products. GSK invested substantial time and money in
    developing the platforms. According to the Government, the
    platforms could help Renopharma develop and manufacture its
    own monoclonal antibodies and reduce the cost of doing so.
    And Renopharma could benefit from the platforms even if it
    did not seek to develop the same products as GSK.
    Lastly, the stolen documents contained information on
    approximately twelve GSK products under development. This
    included Investigational New Drug Applications, which are
    non-public documents submitted to the United States Food and
    Drug Administration in order to initiate clinical trials and that
    contain detailed information on product design and testing.
    The parties press widely different views regarding the
    importance and nature of the information taken from GSK.
    The Government asserts that Renopharma pursued various
    strategies involving GSK’s information, such as marketing
    products and soliciting investments using the information.
    The defendants’ scientific expert, however, testified
    that he did not see evidence of Renopharma using the GSK
    information to research or develop any competing products.
    The defendants further point to Renopharma’s annual report
    and Li’s post-arrest statement as evidence that Renopharma
    was developing products different from GSK’s targets.
    Regarding the nature of the stolen information, the defendants’
    scientific expert testified that much of it was publicly available
    through well-known scientific textbooks or GSK’s patent
    applications.
    6
    The parties also disputed the value of the stolen
    information for purposes of calculating the intended loss. The
    Government’s economic expert witness asserted that the
    intended loss amount exceeded $1 billion. The defendants,
    conversely, argued that it should be $0.
    On September 22, 2020, the District Court issued an
    opinion finding that the Government failed to establish that the
    defendants purposely sought to inflict a loss on the victim,
    GSK. It therefore found the intended loss amount to be $0 and
    declined to apply an enhancement under § 2B1.1 of the
    Guidelines. The court found in the alternative that even if the
    Government had established that the defendants intended to
    harm GSK, the defendants had sufficiently rebutted the
    Government’s proposed valuation.
    The District Court subsequently determined that Xue’s
    Guidelines range, without the enhancement, was 12 to 18
    months of imprisonment. Xue was ultimately given a sentence
    of 8 months of imprisonment. With respect to Li, the court
    determined that the Guidelines range was 10 to 16 months, and
    it imposed a sentence of time served, or 59 days of
    imprisonment. 3 The Government timely appealed the District
    Court’s sentencing determinations.
    3
    The Government’s intended loss calculation, if adopted by
    the District Court, would have resulted in a Guidelines range
    of life imprisonment for each of the defendants. The
    Government ultimately requested the court to impose the
    maximum sentences permitted under the defendants’ plea
    agreements, which were terms of imprisonment of ten years for
    Xue and seven years for Li.
    7
    II.
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    , and we have appellate jurisdiction under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (b). We exercise plenary review
    over a district court’s interpretation of the Sentencing
    Guidelines and review its factual determinations for clear error.
    United States v. Kirschner, 
    995 F.3d 327
    , 333 (3d Cir. 2021).
    III.
    The Government argues that the District Court, in
    declining to apply a sentencing enhancement based on the
    intended loss amount, committed a procedural error by failing
    to calculate the value of the stolen trade secrets. The
    Government further contends that the District Court failed to
    consider properly the nature of offenses involving the theft of
    trade secrets and their treatment under the Guidelines. We first
    set forth below the legal principles relevant to applying the
    Guidelines enhancement at issue and then consider the
    defendants’ arguments in light of those principles.
    A.
    For offenses involving fraud or theft, § 2B1.1 of the
    advisory Guidelines provides for an offense level enhancement
    based on the value of the “loss” attributable to the defendant’s
    conduct. The defendant’s base offense level, which is used to
    calculate a recommended range of imprisonment, increases as
    the loss resulting from the offense increases. See U.S.S.G. §
    2B1.1(b)(1).      The maximum increase is a 30-level
    enhancement for conduct resulting in a loss exceeding $550
    million. Id. The Government bears the burden of establishing
    8
    the amount of loss under § 2B1.1 by a preponderance of the
    evidence. United States v. Free, 
    839 F.3d 308
    , 319 (3d Cir.
    2016); accord United States v. Diallo, 
    710 F.3d 147
    , 151 (3d
    Cir. 2013). But the Guidelines do not mandate that a district
    court find a loss amount of greater than $0. Free, 839 F.3d at
    323 (“We agree with the proposition that the government is not
    entitled to a punitive loss calculation, even in cases involving
    fraud, absent evidence of actual or intended pecuniary loss.”).
    The Guidelines’ commentary details how a district court
    should calculate the amount of loss. U.S.S.G. § 2B1.1 cmt.
    n.3. The general rule defines “loss” as “the greater of actual
    loss or intended loss.” Id. at cmt. n.3(A). 4 There is no dispute
    that GSK’s actual loss here was $0. The District Court was
    therefore required to calculate the intended loss, which the
    application note defines, in the pertinent part, as “the pecuniary
    harm that the defendant purposely sought to inflict . . . .” Id. at
    cmt. n.3(A)(ii). The commentary makes clear that “pecuniary
    4
    Principles of administrative law inform “[t]he extent to which
    the guidelines’ commentary controls our interpretation of the
    guidelines.” United States v. Nasir, 
    17 F.4th 459
    , 469 (3d Cir.
    2021) (en banc). Discussing these principles in light of Kisor
    v. Wilkie, ––– U.S. –––, 
    139 S. Ct. 2400
     (2019), we noted
    commentary that “expanded and did not merely interpret” the
    Guidelines may not be entitled to deference. Nasir, 17 F.4th at
    470–71. We have previously suggested that the commentary
    to U.S.S.G. § 2B1.1 defining intended loss might sweep more
    broadly than the Guideline itself but declined to address the
    issue. See Kirschner, 995 F.3d at 333. Because neither the
    Government nor the defendants argue that the commentary to
    U.S.S.G. § 2B1.1 defining intended loss should not apply, we
    will similarly not address the issue.
    9
    harm” includes only “harm that is monetary or that otherwise
    is readily measurable in money,” and not “non-economic
    harm.” Id. at cmt. n.3(A)(iii). In calculating the amount of
    loss, a district court “need only make a reasonable estimate of
    the loss,” and on appeal, we must give its analysis “appropriate
    deference.” Id. at cmt. n.3(C) (citing 
    18 U.S.C. §§ 3742
    (e),
    (f)). The commentary sets forth six factors that the court, “as
    appropriate and practicable under the circumstances,” should
    use in calculating the intended loss amount. 
    Id.
     Two of those
    factors are relevant here: the fair market value of the
    information taken and the cost of developing the information.
    
    Id.
     at cmt. n.3(C)(i)–(ii).
    We recently reaffirmed that a district court is required
    to “conduct a ‘deeper analysis’ before inferring that a
    defendant intended to cause a particular loss” for purposes of
    § 2B1.1. Kirschner, 995 F.3d at 337; see also Diallo, 710 F.3d
    at 151–52. This requirement applies to “any loss methodology
    the government elects to adopt.” Kirschner, 995 F.3d at 337.
    Our decision in United States v. Kirschner illustrates this
    deeper analysis. The district court in Kirschner calculated the
    amount of the loss from the defendant’s intended sales of
    counterfeit coins. Id. at 331–32. The vast majority of the
    intended loss amount was based on the fair market value of six
    types of rare coins. Id. The Government’s intended-loss
    calculation, adopted by the district court, multiplied the
    estimated fair market value of these rare coins by the historical
    markdown at which the defendant sold other more common
    counterfeit coins. Id. We vacated the sentence because the
    district court “never found that [the defendant] intended to sell
    the coins as counterfeits for the prices the government
    claimed.” Id. at 335. In reaffirming that a district court must
    perform a “deeper analysis,” we noted that the Government
    10
    had not presented evidence that the defendant was aware of the
    value of the rare coins or would actually be able to sell them in
    a manner similar to his past sales of much more common coins.
    Id. at 336 (“And again, the principal question is not whether
    [the defendant] could have sold the high-value counterfeits at
    the prices claimed by the government. The question is whether
    he intended to.”).
    B.
    The District Court interpreted the Guidelines’
    “definition of intended loss [to] include[] the mens rea
    requirement that the defendant ‘purposefully sought to inflict’
    pecuniary harm on the victim.” App. 972 (quoting U.S.S.G. §
    2B1.1 cmt. n.3(A)(ii)). Because the government failed to make
    this showing, and instead, “attempted to prove only the
    development cost of the stolen information and its fair market
    value,” the District Court declined to apply an enhancement
    under § 2B1.1. App. 942.
    The Government suggests that the District Court was
    required “to calculate the loss, based on either development
    costs or [the defendants’] intended gain.” App. 29. 5 By failing
    to do so, the Government asserts that the court committed a
    procedural error. We disagree and conclude that it properly
    5
    The defendants briefly claim that the Government “waived”
    any argument that it satisfied the “purposely sought to inflict
    pecuniary harm standard.” Def’s Br. 39 (quotation marks
    omitted). This “waiver” argument amounts to a bare
    conclusion, and we therefore will consider the Government’s
    argument on appeal.
    11
    interpreted the Guidelines’ commentary defining intended
    loss.
    The plain language of the commentary to § 2B1.1 limits
    the definition of intended loss to “the pecuniary harm that the
    defendant purposely sought to inflict.” U.S.S.G. § 2B1.1 cmt.
    n.3(A)(ii). The District Court’s task was therefore to determine
    whether the defendants purposely sought to inflict a loss on the
    victim in the amount claimed by the government. Kirschner,
    995 F.3d at 336–37 (noting that a district court fails to perform
    a “deeper analysis” if “it adopts an intended-loss methodology
    without demonstrating that the defendant’s ‘purpose’ was to
    inflict the losses the government claims he intended to inflict”);
    see also United States v. Yeaman, 
    194 F.3d 442
    , 460 (3d Cir.
    1999) (“Intended loss refers to the defendant’s subjective
    expectation, not to the risk of loss to which he may have
    exposed his victims.”). By arguing that the District Court erred
    in failing to value the trade secrets, the Government
    presupposes that the defendants intended to inflict losses on
    GSK equal to the cost of developing the trade secrets or their
    fair market value. The District Court found that the
    Government failed to establish that the defendants had the
    purpose to inflict a pecuniary loss on GSK, and accordingly,
    we hold that the court did not err in declining to value the trade
    secrets.
    Although the defendant in Kirschner challenged the
    valuation methodology used to calculate the amount of loss,
    we explained that in conducting a “deeper analysis,” a district
    court must also find that the defendant had the required mental
    state to apply an enhancement based on intended loss. See 995
    F.3d at 337 (“[A] district court must conduct a ‘deeper
    analysis’ to make sure the defendant purposely sought to inflict
    12
    each component of the losses the government claims he
    intended to inflict.”). The record must support a finding that
    the defendant’s purpose was to inflict a pecuniary loss on the
    victim to apply this enhancement. Id. at 337–38. And as we
    explained in Kirschner, direct evidence of the defendant’s
    mental state is not required; a district court “is free to make
    reasonable inferences about the defendant’s mental state from
    the available facts.” Id. at 337.
    Only one other Court of Appeals’ decision has
    addressed the application of U.S.S.G. § 2B1.1 and the analysis
    for intended loss in the theft of trade secrets context: United
    States v. Yihao Pu, 
    814 F.3d 818
     (7th Cir. 2016). The
    defendant in Pu worked at two high-frequency trading firms
    and stole files from those firms’ proprietary trading algorithms.
    
    Id.
     at 821–22. After the defendant pled guilty to offenses
    involving the theft of trade secrets, the District Court found that
    the defendant’s intended loss amount was the cost to develop
    the high frequency trading algorithms. 
    Id.
     at 822–23. The
    Court of Appeals for the Seventh Circuit disagreed. While
    recognizing that the Guidelines’ commentary permits a district
    court to estimate intended loss in a trade secret case by
    considering the cost of development, the court noted that this
    alone does not establish that the cost of development is the
    correct loss figure absent evidence of the defendant’s intent to
    cause such a loss. See 
    id. at 826
    . It identified the core issue as
    “whether the record supports a finding that it was more likely
    than not that [the defendant] intended to cause a loss to the
    victims that equaled the cost of development.” 
    Id.
     Because
    there was no evidence that the defendant intended to inflict a
    loss on the victim equal to the cost to develop the stolen trade
    secrets, the court vacated the defendant’s sentence. 
    Id.
     at 826–
    27.
    13
    We agree with the framework set forth by the Court of
    Appeals for the Seventh Circuit in Pu. 6 The commentary to §
    2B1.1 defining intended loss directs a district court to estimate
    loss based on considerations such as the cost of developing the
    trade secrets and the fair market value of the information.
    U.S.S.G. § 2B1.1 cmt. n.3(C). But absent evidence of a
    defendant’s purpose to inflict a pecuniary loss equal to the
    stolen information’s cost of development or its fair market
    value, a district court cannot find that intended loss equals
    these amounts.
    We conclude that the District Court did not err by
    declining to value the stolen trade secrets where the
    Government failed to establish that the defendants had the
    required mental state for the enhancement based on intended
    loss.
    C.
    The Government next raises a variety of challenges to
    the District Court’s intended-loss analysis, arguing that it
    incorrectly considered the nature of offenses involving the
    theft of trade secrets and their treatment under the Guidelines.
    The Government first asserts that trade secrets have
    “independent economic value” that, when stolen, deprive the
    owner of its exclusive ability to control the information,
    diminish the comparative value of its investment, and
    6
    The Government attempts to distinguish Pu on the ground that
    the defendant’s conduct in that case was factually dissimilar to
    that of Xue and Li. But the Government offers no persuasive
    reason as to why the legal framework in Pu is incorrect.
    14
    demonstrate to others that it is unable to protect trade secrets.
    Gov’t Br. 32–33. While the fact that the object of the theft is a
    trade secret may factor into the analysis, we disagree that the
    District Court erred by failing to account for the trade secrets’
    “independent economic value.” What counts under the
    Guidelines’ commentary is loss in the form of pecuniary harm.
    See U.S.S.G. § 2B1.1 cmt. n.3(a)(iii) (defining “pecuniary
    harm”); see also Free, 839 F.3d at 321. Harms such as loss of
    exclusive control of trade secrets or publicity regarding a
    company’s inability to protect trade secrets, without more, do
    not constitute “pecuniary harm.” And contrary to the
    Government’s assertion that the “theft of a trade secret by a
    would-be competitor necessarily exposes the victim to market
    losses such as lost profits, lost royalties, or diminished share
    price,” Gov’t Br. 34, a potential for pecuniary harm standing
    alone likewise does not establish an intended loss, see Diallo,
    710 F.3d at 153 (noting that a district court errs when it equates
    “potential loss and intended loss without deeper analysis”
    (cleaned up)).
    The Government relatedly argues that if there is no
    finding of loss in this case, then an enhancement based on
    intended loss would never apply in offenses involving the theft
    of trade secrets. 7 The Government’s contention is better
    understood as a disagreement with the District Court over the
    proper inferences to be drawn from the record. While the
    7
    At oral argument, the defendants disputed this point and
    suggested hypothetical cases that might raise the inference that
    an individual who steals trade secrets also intends to inflict a
    pecuniary harm on the victim, such as publishing the trade
    secrets on the internet for others to copy or using the secrets to
    compete directly against the victim.
    15
    Government maintains that the defendants intended to develop
    drugs based on the GSK information or to use the information
    to solicit investment, as discussed below, the District Court did
    not clearly err in finding that the record failed to support such
    an inference.
    The Government next argues that proof of the
    defendants’ intent to gain from the theft of trade secrets
    establishes that the defendants intended to inflict a pecuniary
    harm on GSK. Gov’t Br. 34. 8 The District Court, however,
    considered evidence of how the defendants used, and intended
    to use, the stolen information and found that the record did not
    support an inference of an intent to inflict a pecuniary harm on
    GSK. This finding was not clearly erroneous.
    While the defendants took information for the benefit of
    their pharmaceutical company, the District Court found that the
    defendants did not in fact use the trade secrets to compete with
    GSK. It found that the defendants did not use the information
    to solicit investment, develop competing products, or develop
    the same products that GSK was developing. The District
    Court, for example, found that the “financial statements” used
    for soliciting investment in Renopharma were mere puffery
    and not credible evidence of a realistic expectation of gain.
    App. 981–82. It further noted that an email sent by Li to solicit
    8
    The commentary to § 2B1.1, relatedly, provides that “[t]he
    court shall use the gain that resulted from the offense as an
    alternative measure of loss only if there is a loss but it
    reasonably cannot be determined.” U.S.S.G. § 2B1.1 cmt.
    n.3(B). But we do not see how this provision could apply here
    absent evidence that the defendants experienced any gains
    resulting from their Renopharma scheme.
    16
    investment in Renopharma “did not show that it was more
    likely than not that [the] Defendants were shopping a GSK-
    developed product, rather than their own, independent
    creation, or simply engaging in puffery to solicit investment,
    which appears to have been Renopharma’s modus operandi.”
    App. 983. We see no clear error in the District Court declining
    to infer intended loss from evidence of the defendants’
    intended gain. 9
    The Government finally argues that the defendants
    admitted during their plea allocutions that they acted with the
    required mental state for applying the enhancement based on
    the intended loss. Both Xue and Li pled guilty to a single count
    of conspiracy to steal trade secrets, in violation of 
    18 U.S.C. § 1832
    (a)(5). This statute, in the relevant part, prohibits an
    individual who, “with intent to convert a trade secret . . . to the
    economic benefit of anyone other than the owner thereof, and
    intending or knowing that the offense will, injure any owner of
    9
    To the extent the District Court suggested that in the context
    of theft of trade secrets a defendant’s intended gain can never
    further an inference of intended loss, we disagree with this
    suggestion. An inference of intent, for purposes of the
    intended loss analysis, may be based on the defendant’s
    conduct and purpose in committing the offense. See Kirschner,
    995 F.3d at 337 (“In conducting [the deeper] analysis, the court
    is free to make reasonable inferences about the defendant’s
    mental state from the available facts.”); cf. United States v.
    Feldman, 
    338 F.3d 212
    , 223 (3d Cir. 2003) (identifying that a
    district court “must look at what [the defendant] sought to gain
    from committing the crime” as part of the intended loss
    analysis). This disagreement, however, does not alter the result
    herein.
    17
    that secret, knowingly . . . conspires” to steal trade secrets. 
    18 U.S.C. § 1832
    (a)(5) (emphasis added).
    The Government’s argument fails to account for
    important differences between the elements of the offense and
    the required mental state for purposes of the analysis for
    intended loss. A defendant who intends or knows that his or
    her conduct will injure the owner of the trade secret does not
    necessarily intend to inflict pecuniary harm on that secret’s
    owner. Cf. Pu, 814 F.3d at 828 (“The statute of conviction, 
    18 U.S.C. § 1832
    , does not explicitly require an economic loss to
    the victim.”). The Government itself identifies examples of
    potential non-pecuniary injuries that result from the theft of
    trade secrets, such as loss of the exclusive use of the
    information and the possible public disclosure that a company
    cannot protect the information. A second element of the
    offense, “inten[ding] to convert a trade secret . . . to the
    economic benefit of anyone other than the owner thereof,” 
    18 U.S.C. § 1832
    (a), likewise does not establish an intent to inflict
    pecuniary harm on GSK. The District Court, as explained
    above, did not credit the Government’s theories that
    Renopharma was developing competing products or soliciting
    investment based on the GSK information. We conclude that
    the District Court did not clearly err in finding that the
    defendants’ plea allocutions failed to establish the required
    intent for purposes of the intended loss analysis.
    IV.
    For the foregoing reasons, we will affirm the judgments
    of the District Court.
    18
    

Document Info

Docket Number: 21-2227

Filed Date: 8/2/2022

Precedential Status: Precedential

Modified Date: 8/2/2022