United States v. Shan Shi ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2020 Decided March 16, 2021
No. 20-3010
UNITED STATES OF AMERICA,
APPELLEE
v.
SHAN SHI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cr-00110-1)
Michael Dearington argued the cause for appellant. With
him on the briefs were Peter R. Zeidenberg, Taniel E.
Anderson, and Laura Zell.
Sonja M. Ralston, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was Luke
M. Jones, Assistant U.S. Attorney. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: WILKINS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
2
Concurring opinion by Circuit Judge WILKINS.
Concurring opinion by Senior Circuit Judge SILBERMAN.
WILKINS, Circuit Judge: We can’t always get what we
want, but, sometimes, we get what we need. Appellant Shan
Shi obtained seven documents containing trade secret
information his company needed to produce drill riser
buoyancy modules, the high-tech equivalent of water wings for
the miles of steel pipe that extend from drill ships to the ocean
floor and carry oil from natural deposits tens of thousands of
feet below the surface. Unfortunately, that information was not
publicly available; it came from a competitor. Viewing the
evidence in the light most favorable to the government, United
States v. Vega, 826 F.3d 514, 522 (D.C. Cir. 2016) (citation
omitted), we hold that the jury had sufficient evidence to find
that Shi joined an agreement to acquire and use trade secret
information, and sufficient evidence to find that Shi believed
the documents he received contained trade secrets. We
therefore affirm his conviction.
I.
A.
Recovering oil from the seabed is expensive business.
When a company like ExxonMobil believes it has identified a
natural deposit, it floats a drill ship or semi-submersible over
the location it hopes to find oil and readies to drill. Drilling
involves dropping a “riser” from the ship to a wellhead on the
ocean floor. These risers are steel pipes, seventy-five to ninety
feet long and about two to four feet in diameter, which bolted
together extend ten thousand feet or more to reach the sea floor.
Ten thousand feet of steel weighs around four million pounds.
3
And atmospheric pressure is not constant along the length of
the riser: pressure increases the deeper the riser goes, and is
extreme at the depths these riser pipes reach. Without help,
these pipes would sink like a stone and bring the drill ship down
with them.
To neutralize the riser’s weight and the crushing pressure
of sea water, Exxon needs drill riser buoyancy modules
(“DRBMs”). And they need a lot of them: at least three or four
DRBMs clamp around each 75-foot section of pipe. At ten
thousand feet, that means hundreds of DRBMs to offset the
weight of miles of pipe extending to the ocean floor. DRBMs
are not cheap: it is not unusual for a DRBM manufacturer to
fill a forty- to eighty-million-dollar order. And a failure in the
manufacturing process that produces a faulty DRBM is the
equivalent of scrapping a Toyota Camry. Catching a failed
module early is critical. Should enough sections of DRBM fail
while attached to the riser in the water, down goes the riser and
down goes the rig. Manufacturing DRBMs, then, is an
expensive business in which errors are costly, margins are slim,
and minimizing the amount of scrap material is paramount.
DRBMs offset the riser pipes’ weight because they are
filled with a mixture known as syntactic foam. Syntactic foam
consists of hollow spheres, known as macrospheres, suspended
in a plastic resin. The surrounding resin is in turn made of even
smaller glass microspheres suspended in a baked epoxy. The
larger macrospheres, so-called because they run from ten to
forty millimeters in diameter, are especially difficult to
produce. The product of a long, laborious, and finnicky
manufacturing process, they are made by dissolving
polystyrene balls inside a cement-mixer-like tumbler while
applying successive coats of polymer and fiber over a period of
three to seven days in order to strengthen the hollow spheres to
withstand pressure at a given ocean depth. Recall that ocean
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pressure increases the deeper a riser goes; DRBM
manufacturers need different macrospheres, designed to
withstand greater pressures, depending on the depth at which
the DRBM they fill will be used.
Each material that goes into the tumbler is carefully chosen
to balance cost and performance. A DRBM manufacturer
might choose glass fiber, a milled mineral fiber such as
wollastonite, or carbon fiber to coat its macrospheres. And
there are various types of each of these fibers, and various
thermosets that bond these fibers to the surface of the sphere,
to choose from, each with different prices and properties.
DRBM manufacturers spend millions of dollars each year on
research and development to determine which variants, in
which combinations, to use.
These choices are based on trial and error. The fiber used
(glass, carbon, or wollastonite), the bonding material that
adheres each layer, and the number of coats determine a
macrosphere’s density and strength, which must be empirically
tested. DRBM manufacturers know that theoretical math takes
them only so far: equations published in textbooks or scientific
papers can tell them the pressure a sphere of a given diameter,
with a given number of coats of a given material, might
withstand, but those equations are theoretical. Equations
assume perfect spheres with perfectly uniform walls; in reality,
manufactured macrospheres aren’t perfect. A macrosphere
might not be perfectly round, its wall might be ten percent
thinner in one spot, or its surface might be creased, rather than
perfectly smooth. In that case, theoretical calculations are of
little use. Apply the same pressure to an imperfect sphere that
a perfect sphere would survive, and the imperfect sphere will
fail. Thus, before they are mixed into the epoxy resin, finished
macrospheres are tested to evaluate their performance in
hydrostatic test machines, lab equipment that mimics ocean
5
pressure and allows the manufacturer to determine whether the
finished macrospheres are sufficiently strong to operate at the
depths they were designed to withstand. Once satisfied that the
empirical results match the theoretical calculations, a
manufacturer places the macrospheres into a mold that is
injected with the resin containing glass microspheres and cured
to produce the syntactic foam and the resulting DRBM.
B.
DRBMs are what Shan Shi sought to make. But in 2012,
only four major companies in the world produced DRBMs:
Cuming Corporation, Balmoral, Matrix, and Trelleborg AB.
None of these companies are Chinese. Seeking to increase its
offshore drilling capabilities and explore additional military
uses for syntactic foam, the Chinese government sponsored
Taizhou CBM-Future New Materials Science and Technology
Co., Ltd. (“CBMF”) to develop the technology. CBMF in turn
partnered with Shi, a PhD with twenty-five years of
engineering experience in offshore structural design, to
incorporate Construct Better Materials International (“CBMI”)
in Houston as a wholly owned subsidiary of CBMF in March
2014.
But Shi did not know how to manufacture syntactic foam,
so he set out to “[c]ollect information, detailed information,”
and “digest/absorb the relevant, critical U.S. technology.” S.A.
34, 64. In December 2013, he and two senior CBMF
employees visited Trelleborg Offshore US, Inc.’s
(“Trelleborg”) factory in Houston. There they would have seen
Trelleborg’s measures to keep its proprietary information
confidential, including round-the-clock security guards and
video monitoring, visitor logs, and keypad entry on restricted
areas, including the research and development lab. They were
escorted and instructed not to take pictures.
6
Shi also considered a joint venture with Cuming
Corporation. He was told that since Cuming considered its
technology proprietary it would not discuss specific formulas
and would keep sole control of the technology it brought to the
joint venture by using its own personnel during the
manufacturing process. Shi also visited Cuming’s factory in
Boston and was told that the portion of the factory where
Cuming tumbled macrospheres would be off limits. Shi and
CBMF declined to partner with Cuming after learning that the
venture would cost $6 million over a period of nine to
seventeen months.
Cuming was not alone in protecting its formulas and
technology. In fact, Trelleborg’s technology was so valuable
that the company typically chose to keep its innovations
confidential rather than publicly disclose and patent them to
earn royalties. And while Trelleborg disclosed some of its
manufacturing specifications in marketing and bid materials,
its complete specifications remained proprietary. Particularly
sensitive was information disclosing the depth at which a
macrosphere with a certain density and pressure resistance
could survive. This “piece that let[] you fit the use of the sphere
into the larger puzzle of how the part could perform” was not
voluntarily disclosed because “the combination of density test
survivors at a given pressure and depth is one of the proprietary
components of the technology because that tells you part of the
equation of how the foam is manufactured for a particular
application.” J.A. 809, 858-59.
Trelleborg witnesses also testified that individuals in
technical roles, like Shi, “understand what is freely available in
the marketplace, such as the [standard] formulations for
making a syntactic foam,” and what is not:
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Technical competence means that they
understand where they can recognize that
material is something you can pick up in a
textbook, such as how to make syntactic foam,
the ratio of resin to hardener, and whether the
confidential information is such that -- for
instance, whether a formulation has contained
specific siloxanes, specific diluents or other
materials like that over and above a standard
formulation, very specific percentages to make
the product that we make.
J.A. 1305–06. That specific information “shouldn’t be shared.”
J.A. 1305.
Shi thus needed to find individuals with the expertise to
make macrospheres and syntactic foam that could compete
with Trelleborg’s and Cuming’s products. His friend Kui Bo,
a charged co-conspirator, sent Shi a resume for Sam Ogoe, a
former member of Trelleborg’s Innovation and Technology
team who had left Trelleborg in 2012. Shi and Bo interviewed
Ogoe in November 2014. During his interview, Ogoe told Shi
that he would need data to compare newly manufactured
spheres against. He also told Shi that he had “some friends at
Trelleborg” he could contact to obtain that data. J.A. 1168. Shi
hired Ogoe, and Ogoe testified that he was “told to replicate
what Trelleborg was making.” J.A. 1200.
Ogoe testified that Shi expected him to provide this non-
public information:
Q: And then you did not want Dr. Shi to know
where you got that information from. Correct?
A: That’s not true.
8
Q: Well, isn’t it true that you wanted Dr. Shi
and Bo to think that you came up with this
information yourself?
A: No. That’s the reason why they hired me.
They hired me to get information from --
because there’s nowhere else I can get
information. Okay? I told them at the very
onset. They knew that. That’s why they went
after me at LinkedIn. Okay? I didn’t apply for
this job.
J.A. 1239.
Ogoe was responsible for developing and producing a
prototype sphere for a leading industry conference in May
2015. But in late 2014, CBMI had no equipment, no
laboratory, and no raw materials to manufacture macrospheres.
As promised, Ogoe reached out to two friends at Trelleborg.
Ogoe received Trade Secret One, a chart of density and
pressure specifications for macrospheres graded to withstand
listed depths. He also asked for and received testing data for
macrospheres from Trelleborg employee Uka Uche that
constituted Trade Secret Two. Uche testified that he knew he
was not supposed to share this data. Uche also sent Trade
Secret Three, Trelleborg’s standard operating procedure for
conducting hydrostatic pressure tests.
Ogoe testified that he understood that he “did wrong” by
asking his friends for “confidential information” that
Trelleborg “wouldn’t put . . . outside.” J.A. 1200. Ogoe
removed the Trelleborg logos from Trade Secrets One and
Three because Shi intended to “present it outside” CBMI. J.A.
1209. He sent Shi a condensed version of Trade Secret One,
9
without a Trelleborg logo, in January 2015, well before CBMI
had a lab or machinery with which to produce data linking the
density of spheres of a given fiber to the depths at which they
would burst under pressure. He also sent a modified version of
Trade Secret Two shortly after he received it. And he
condensed Trelleborg’s hydrostatic testing procedure, Trade
Secret Three, into a one-page document and shared it with Shi
in March 2015.
Ogoe and Bo worked to build a laboratory, but would not
obtain a hydrostatic test machine until at least April 2015.
Ogoe also produced a “recipe” containing the specific variants
of raw materials and their respective ratios used to make
syntactic foam in April 2015, after which Shi told Bo that
“[y]ou got to know how much time Sam saved for us, because
there [are] all kind[s] of resin and hardeners.” J.A. 1051–52.
When Shi sent Ogoe to a materials supplier Ogoe previously
worked with at Trelleborg, Shi instructed him not to “tell them
that we are making beads . . . from Trelleborg” (Ogoe’s gloss:
“In other words, we are copying”). J.A. 1173.
Bo testified that Shi was a micromanager, and Ogoe
confirmed that because Bo was “the one who was there
Monday through Friday” he would relate everything he did to
Bo “and then Bo w[ould] tell Dr. Shi about it.” J.A. 1208.
Ogoe testified that he told Bo he got information from
Trelleborg, and that “they kn[e]w for sure that information
came from [Trelleborg].” J.A. 1217. When Bo was asked at
trial whether he had an agreement with Shi or Ogoe to “steal
anything from Trelleborg,” Bo replied, “[n]o, we don’t.” J.A.
1151.
Ogoe passed along a reference for Gang Liu, another
former Trelleborg employee, and Bo sent Shi Liu’s resume in
late March 2015. Shi initially dismissed Liu because he was
10
not a PhD and had worked at Trelleborg for only a year, but
suggested “we can consider to use him in the future.” J.A.
1788. Liu was another member of Trelleborg’s Innovation and
Technology team who had been laid off in February. Shi later
decided to interview Liu, and called Bo “right after” to tell him
that “Gang Liu is the guy that we have been looking for.” J.A.
1066. Bo testified that Shi “sound[ed] very excited” and also
“mention[ed] Gang Liu kept some technical data from
Trelleborg.” Id.In the course of hiring Ogoe and Liu, Shi learned of
additional measures Trelleborg took to protect its confidential
information. When Shi hired Ogoe, he received the “General
Release and Settlement Agreement” Ogoe executed upon his
departure from Trelleborg. In it Ogoe agreed not to reveal “any
trade secrets or confidential information” he learned through
his employment at Trelleborg. J.A. 337. And after Shi
received the non-compete and non-disclosure agreement
Trelleborg entered with Liu, he directed Bo to draft a standard
non-disclosure agreement for CBMI employees. Bo created an
agreement similar to Liu’s non-disclosure agreement with
Trelleborg. Compare J.A. 233–35, with J.A. 242–45.
Shi hired Liu through Offshore Dynamics, Inc., another
company he owned that shared office space with CBMI. On
his third day of work, Liu sent Shi Trade Secret Four, a chart
showing density and depth ratings based on the composition of
different coats of various materials, their survival rates based
on pressure testing, as well as Trelleborg’s ratio of epoxy to
hardener. That same week, a CBMF employee in China asked
Shi for information “regarding formula, preparation process
and performance of the syntactic materials” in order to
“purchase the raw materials in China and give it a try to see
whether we can make [syntactic foam] by agitation.” J.A. 354–
55. Shi asked Liu to “verify” the recipe for syntactic foam he
11
had received from Sam Ogoe. J.A. 355–356. Liu sent Trade
Secret Five in response, with a slightly updated formulation for
the recipe.
Liu also sent Trade Secret Six “as discussed,” a single-tab
spreadsheet showing the number of coats Trelleborg applied to
various types of spheres at specified depths and the estimated
costs to produce them. Trade Secrets Four and Six were Excel
sheets sent to Shi with “Reference – Trelleborg” written on
their tabs. J.A. 353 (Four), 361 (Six). In June, Liu sent Shi a
patent application using standards and data from Trelleborg,
but a CBMF employee told Shi it would be inappropriate to list
Liu as the inventor because he was still “within the
noncompetition period with Trelleb[o]rg.” J.A. 365, 369.
Finally, also in June 2015, Liu emailed Trade Secret Seven,
listing bulk prices for the raw materials Trelleborg used in its
syntactic foam to CBMF in China, bcc’ing Shi and writing in
the body of the message: “The attachment provides technical
data of the raw materials and prices of part of the raw materials
received from Trelleborg for your reference.” J.A. 362–63.
The spreadsheet’s tab was also labeled “Reference –
Trelleborg.” J.A. 363.
CBMI was so successful in replicating Trelleborg’s
macrospheres that it impressed Trelleborg Executive Vice
President Mark Angus with its macrosphere models at the
Offshore Technology Conference (“OTC”) in May 2015. Shi
entered into talks with Trelleborg about potentially selling
CBMI’s spheres to Trelleborg in August 2015. Bo testified that
Liu told Shi he was worried that Trelleborg would reverse
engineer CBMI’s spheres and deduce they were prepared with
Trelleborg’s “recipe.” J.A. 1077–78. The companies executed
a mutual non-disclosure agreement in October 2015 and
Trelleborg sent CBMI density and pressure specifications to
guide CBMI’s production of macrosphere samples Trelleborg
12
would evaluate to determine if they met Trelleborg’s standards.
These specifications did not include depth information.
Trelleborg eventually decided not to purchase CBMI’s
macrospheres, though they exceeded performance targets,
because they were too expensive. In 2017, at a pitch meeting
Shi and Liu made to representatives of a company they
believed to be Lockheed Martin, FBI agents arrested both men.
C.
Shi, both companies, and five co-conspirators were
charged in a superseding indictment in April 2018. Three co-
conspirators pled guilty to one count of conspiracy to commit
theft of trade secrets in violation of 18 U.S.C. § 1832, Liu
absconded prior to trial, and an employee of CBMF remained
in China. CBMF and CBMI never appeared, leaving Shi as the
only defendant to stand trial. At the close of the government’s
case the defense moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29, and the District Court
reserved a ruling until the close of evidence. Shi’s counsel
renewed the motion at the close of evidence and the District
Court again reserved a ruling. Over the course of a ten-day jury
trial, the jury heard testimony from twenty-one witnesses and
reviewed some 250 exhibits.
After three days of deliberations, the jury returned a guilty
verdict on Count One, alleging conspiracy to commit theft of
trade secrets. The District Court denied Shi’s motion for
judgment of acquittal on December 17, 2019, entered judgment
on February 18, 2020, and Shi filed a timely notice of appeal
two days later. The District Court exercised jurisdiction under
18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. §
1291. Finding ample evidence to sustain the jury verdict, we
affirm.
13
II.
Overturning a jury verdict on the ground of insufficient
evidence “is not a task that we undertake lightly.” United
States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990). “As an
appellate court, we owe tremendous deference to a jury
verdict.” Id. We review the evidence de novo, but consider it
in the light most favorable to the government and will affirm a
guilty verdict where “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
United States v. Smith, 950 F.3d 893, 894–95 (D.C. Cir. 2020)
(emphasis in original) (quoting United States v. Wahl, 290 F.3d
370, 375 (D.C. Cir. 2002) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979))). “In undertaking our deferential review
of the jury’s verdict, we draw ‘no distinction between direct
and circumstantial evidence’ and give ‘full play to the right of
the jury to determine credibility, weigh the evidence and draw
justifiable inferences of fact.’” United States v. Glover, 681
F.3d 411, 423 (D.C. Cir. 2012) (quoting United States v.
Carson, 455 F.3d 336, 368–69 (D.C. Cir. 2006)); see also
Vega, 826 F.3d at 522.
Shi contends the evidence introduced at trial was
insufficient to allow a rational juror to find that he knowingly
joined an agreement to steal trade secrets, and insufficient to
show that Shi and at least one co-conspirator believed the
appropriated information contained trade secrets. We dispose
of each argument in turn.
A.
To prove Shi guilty of conspiracy beyond a reasonable
doubt pursuant to 18 U.S.C. § 1832, the government needed to
show that (1) he “enter[ed] into an agreement with at least one
other person to commit” theft of trade secrets; (2) he
14
“knowingly participate[d] in the conspiracy with the intent to
commit the offense”; and (3) a member of the conspiracy
committed “at least one overt act . . . in furtherance of the
conspiracy.” 1 Smith, 950 F.3d at 895 (third alternation in
original) (quoting United States v. Gatling, 96 F.3d 1511, 1518
(D.C. Cir. 1996)). The agreement “need not be shown to have
been explicit,” and “can instead be inferred from the facts and
circumstances of the case.” Iannelli v. United States, 420 U.S.
770, 777 n.10 (1975). In other words, “since a conspiracy is by
nature secret, the jury may fairly infer the existence of the
agreement through either direct or circumstantial evidence.”
United States v. Morris, 836 F.2d 1371, 1373 (D.C. Cir. 1988);
see also Smith, 950 F.3d at 895 (“The government need not
prove the agreement by direct evidence.”).
Shi contends that we have reversed conspiracy convictions
where none of the government’s cooperating co-conspirator
witnesses testified that the defendant joined in an agreement to
commit a crime. Appellant’s Br. at 29. Relying primarily on
United States v. Gaskins, 690 F.3d 569 (D.C. Cir. 2012), Shi
urges that there is “reason to doubt” his involvement in the
conspiracy where cooperating witnesses who were motivated
to testify against him were unable to point to “conclusive
evidence” of his guilt. Appellant’s Br. at 30. Shi argues that
reversal is even more compellingly called for here because,
unlike in Gaskins, a central cooperating co-conspirator
“affirmatively denied” Shi’s involvement in an agreement to
steal Trelleborg’s trade secrets. Reply Br. at 4. Shi relies
heavily on Bo’s testimony given in response to a series of
questions asking whether he had an agreement with Shi or any
1
Since the jury could find an “overt act” in any of the emails
containing Trelleborg data (conveyed from Trelleborg employees or
between Shi and employees of CBMI), this element is not at issue.
See J.A. 1522–28.
15
other co-conspirator to steal material from Trelleborg. To each
Bo replied, “No, we don’t.” J.A. 1151–52.
In Gaskins, we reversed Alvin Gaskins’s conviction
finding him a member of a twenty-plus person narcotics
conspiracy. 690 F.3d at 571. Despite proffering eight
cooperating witnesses, more than 14,000 intercepted phone
conversations, visual and video surveillance, and evidence
seized during multiple searches, the government failed to offer
any evidence that placed Gaskins with the drugs or as a
participant in conversations about the drugs involved in the
conspiracy. Id. at 571–72. None of the cooperating witnesses
described Gaskins as “having any knowledge of the
conspirators’ drug trafficking activities,” id. at 572; no
surveillance showed Gaskins participating in drug sales,
conspiratorial meetings, or in the presence of drugs, and
Gaskins’s prints were not found in the apartment where drugs
were bagged, id. at 574; and a search of Gaskins’s apartment
yielded neither drugs, records, nor any evidence of Gaskins’s
involvement in the conspiracy, id.
The only evidence to support the government’s theory that
Gaskins was a “business manager” for the conspiracy was his
name on the lease and various utility bills for the apartment
where drugs were bagged, but the government did not attempt
to prove the signature on the lease was Gaskins’s and another
co-conspirator testified that he, not Gaskins, paid the utility
bills. Id. at 572, 574–75. The government also introduced
airline records showing that Gaskins purchased a co-
conspirator’s airline tickets and wiretapped conversations in
which the conspiracy’s leader asked Gaskins to purchase
tickets, though the calls did not mention either drugs or the
purpose of the trips. Id. at 575. The co-conspirator who took
the trips testified that he did not know who made the
reservations and that he never spoke with Gaskins about them,
16
and in a recorded phone conversation, the conspiracy’s leader
was heard identifying himself to an airline representative as
Gaskins. Id. at 578–79.
The jury initially returned a verdict that found Gaskins not
guilty of various racketeering acts, but “guilty” on the general
verdict line for the narcotics conspiracy charge. Id. at 576.
However, the jury checked “not proven” for each of the four
objects of the conspiracy (distribution of various narcotics),
and when the district court sent the narcotics conspiracy count
back with a new verdict sheet, the jury again returned a general
verdict of guilty, but this time checked “proven” for the object
of distributing heroin. Id. We reversed, finding that “[n]ot one
piece of evidence” linked Gaskins to the drugs involved in the
conspiracy. Id. at 572. So glaring was the absence of evidence
that the panel took the extraordinary step of issuing an order
reversing Gaskins’s conviction and directing the entry of
judgment of acquittal immediately after oral argument. Id. at
571.
Shi overreads Gaskins to stand for the proposition that
there was insufficient evidence of an agreement because the
cooperating co-conspirators provided none, and misses a key
distinction between Gaskins’s case and his own. In fact, the
Gaskins panel stressed the overwhelming lack of evidence in
its totality; it did not weigh the absence of co-conspirator
testimony against countervailing evidence of guilt. Id. at 577
(“there was no affirmative evidence that Gaskins knowingly
joined the narcotics conspiracy or had the specific intent to
further its aims”); id. at 581 (“[T]he government correctly notes
that we must consider all of the evidence in its totality. We
have done so, and nonetheless conclude that it is insufficient to
sustain the verdict.”). Reweighing evidence that a defendant
joined an agreement against an absence of co-conspirator
testimony implicating him in the conspiracy would be
17
improper. See Vega, 826 F.3d at 522 (a reviewing court must
give “full play to the right of the jury to determine credibility,
weigh the evidence and draw justifiable inferences of fact.”
(quoting United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir.
2005))).
But even were we to adopt a bright-line rule requiring
reversal where none of the government’s cooperating co-
conspirator witnesses testified that the defendant joined an
agreement to commit a crime, which we do not, Shi would not
satisfy his own test. Two co-conspirators testified to Shi’s
agreement: Told during his job interview that his objective
would be to produce macrospheres in time for OTC in May
2015, Sam Ogoe responded that he had “some friends at
Trelleborg” from whom he could obtain the necessary data.
J.A. 1168. Shi hired Ogoe. And Bo testified that Gang Liu
told Shi during his job interview that he had kept “technical
data from Trelleborg.” J.A. 1066. Shi hired Liu as well,
through a separate company he owned that shared office space
with CBMI, raising the permissible inference that Shi did not
want Trelleborg to learn that he’d hired one of its former
employees within the period of Liu’s non-compete.
We hold simply that given the testimony above, a rational
juror could find that Shi entered into a tacit agreement to
manufacture DRBMs using stolen trade secrets. See Smith, 950
F.3d at 895. “[S]ince a conspiracy is by nature secret, the jury
may fairly infer the existence of the agreement through either
direct or circumstantial evidence.” Morris, 836 F.2d at 1373.
Here we have both: Ogoe also testified that he was “told to
replicate what Trelleborg was making,” J.A. 1200, and that Shi
“hired me to get information from [Trelleborg] — because
there’s nowhere else I can get information.” J.A. 1239. Shi
and Bo, Ogoe testified, “kn[e]w for sure that information came
from [Trelleborg].” J.A. 1217; see also J.A. 1206 (“[T]hey told
18
me to replicate or produce spheres from Trelleborg, okay?
They know — and I told them I have contact there.”). The jury
also heard testimony giving rise to an inference that Shi
knowingly participated in the conspiracy after hiring Ogoe and
Liu. When Shi sent Ogoe to a materials supplier Ogoe had
worked with at Trelleborg, Shi instructed him not to “tell them
that we are making beads . . . from Trelleborg.” J.A. 1173.
And Liu worried to Shi that Trelleborg could reverse engineer
CBMI’s spheres and discover they were prepared with
Trelleborg’s “recipe.” J.A. 1077–78.
This is a far cry from Gaskins, where “[n]ot one piece of
evidence” linked Gaskins to the object of the conspiracy. 690
F.3d at 572. And Bo’s testimony that he “didn’t have an
agreement with Dr. Shi to steal anything from Trelleborg” does
not wipe the slate clean nor require us to turn a blind eye to
Ogoe’s testimony, nor to Bo’s testimony regarding Liu’s
statements. J.A. 1151. Ogoe’s testimony that Shi hired him to
“replicate” Trelleborg spheres after he explicitly told Shi there
was “nowhere else” he could obtain the information he needed
allowed the jury to infer that Shi understood Ogoe would
acquire and use confidential Trelleborg data. The jury’s choice
to credit Ogoe’s testimony and reject Bo’s was not
unreasonable in light of the evidence that Shi continued to use
his employees’ data after he was told, repeatedly, where it came
from and could not have plausibly believed that it was
produced in-house when the company he micromanaged had
no working lab. We will not substitute our view for the jury’s
careful weighing of the witnesses’ credibility. See Glover, 681
F.3d at 423. 2
2
As stated in Judge Silberman’s concurrence, some language in our
early opinions suggests endorsement of the so-called equipoise rule,
in which a judgment for the defendant must be entered “where all the
substantial evidence is as consistent with innocence as with guilt.”
Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947) (quoting
19
We find United States v. Treadwell more instructive than
Gaskins. 760 F.2d 327, 329 (D.C. Cir. 1985). There we held
the evidence sufficient to support a jury verdict finding the
CEO of a nonprofit real estate ownership and management firm
guilty of conspiracy to defraud the United States for her actions
in mismanaging Clifton Terrace, a low-income housing project
in Northwest D.C. Id. at 329, 335. The evidence showed that
Mary Treadwell did not supervise the daily operations of the
management firm, and that her sister and another co-
conspirator misused and misappropriated government funds.
Hammond v. United States, 127 F.2d 752, 753 (D.C. Cir. 1942)).
However, “[t]he true rule . . . is that a trial judge . . . [who] concludes
that either of the two results, a reasonable doubt or no reasonable
doubt, is fairly possible, [] must let the jury decide the matter.” Id.at 232–33. “In Curley we specifically disapproved the implications
of Hammond that . . . if a reasonable mind might fairly conclude
either innocence or guilt, a verdict of guilty must be reversed on
appeal.” Allison v. United States, 409 F.2d 445, 450 n.16 (D.C. Cir.
1969) (per curiam) (citation omitted). See also United States v.
Collins, 56 F.3d 1416, 1420 (D.C. Cir. 1995); United States v. Weisz,
718 F.2d 413, 438 (D.C. Cir. 1983); United States v. Carter, 522 F.2d
666, 680–82 (D.C. Cir. 1975). We need not decide this issue here,
because this case is not on the knife’s edge between innocence and
guilt. Even though Bo testified that he had no agreement with Shi to
steal trade secrets, the government introduced Bo’s guilty plea, J.A.
1032–34, solicited testimony that he pleaded guilty to conspiracy to
commit theft of trade secrets, J.A. 1033, and introduced evidence that
two of Shi’s co-conspirators told Shi in their job interviews that they
either had or could get technical data from Trelleborg, and that these
employees sent Shi empirical data even though they had no lab with
which to produce it. Thus, the jury was entitled to disbelieve Bo’s
testimony that he did not join a conspiracy to steal trade secrets
despite his plea to the same crime, and his exculpatory testimony was
outweighed by the evidence of Shi’s knowing participation in
CBMI’s appropriation and use of Trelleborg’s trade secrets.
20
Id. at 329–32. Treadwell claimed she “knew nothing about any
of the improper expenditures” made by her sister and the other
co-conspirator. Id. at 334.
While this Court found the verdict “troubling because the
government’s evidence against Treadwell was almost entirely
circumstantial, and the majority of her actions were susceptible
to logical and innocent explanations,” id. at 333, it nonetheless
found sufficient evidence to support the verdict where the “jury
knew . . . that appellant had a close personal relationship with
her sister . . . and was closely associated with [the other co-
conspirator] in this as well as other businesses,” and where “[i]t
heard testimony that she held regular meetings with [her sister
and co-conspirator] in order to supervise their management of
the project.” Id. at 334. The same may be said of Shi: Bo
testified that Shi was a micromanager, and Ogoe confirmed that
because Bo was “the one who was there Monday through
Friday” he would relate everything he did to Bo “and then Bo
w[ould] tell Dr. Shi about it.” J.A. 1208.
And while Shi’s words and deeds may be similarly
susceptible to innocent explanations, the “evidence need not
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” See
United States v. Bostick, 791 F.3d 127, 137 (D.C. Cir. 2015)
(quoting United States v. Kwong–Wah, 924 F.2d 298, 302
(D.C. Cir. 1991)). Here, as there, “[i]n determining whether
the government has met its burden of proof . . . no legal
distinction may be drawn between direct and circumstantial
evidence.” Treadwell, 760 F.2d at 333. We hold that the jury
had sufficient evidence to find that Shi entered into an
agreement to acquire Trelleborg’s trade secrets and was a
knowing participant in the conspiracy for which he was
convicted.
21
B.
Shi next argues the evidence was insufficient to show that
he and at least one co-conspirator believed the appropriated
information contained trade secrets. 3 We find that the
government introduced sufficient evidence to allow a rational
juror to conclude that Shi and Ogoe believed both that
Trelleborg took reasonable measures to keep their proprietary
3
Trade secrets are statutorily defined to include:
all forms and types of financial, business, scientific,
technical, economic, or engineering information,
including patterns, plans, compilations, program
devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs, or
codes, whether tangible or intangible, and whether
or how stored, compiled, or memorialized
physically, electronically, graphically,
photographically, or in writing if—
(A) the owner thereof has taken
reasonable measures to keep such
information secret; and
(B) the information derives
independent economic value, actual
or potential, from not being
generally known to, and not being
readily ascertainable through
proper means by, another person
who can obtain economic value
from the disclosure or use of the
information.
18 U.S.C. § 1839(3).
22
information secret and that the information derived value from
secrecy. See 18 U.S.C. § 1839(3).
As an initial matter, we have not had the opportunity to
decide whether, in proving a conspiracy to steal trade secrets,
the government need establish only that the defendant
conspired to obtain information he believed to contain trade
secrets, rather than prove he conspired to obtain actual trade
secrets. Shi does not challenge the jury instruction below,
which charged the jury to find that Shi and at least one other
co-conspirator “reasonably believed” that any one of the
alleged trade secrets were actually secret, protected by
reasonable measures, and independently economically
valuable as a result of being secret. Appellant’s Br. at 38–39;
J.A. 1534–35. Our sister circuits are in accord. See, e.g.,
United States v. Nosal, 844 F.3d 1024, 1044–45 (9th Cir. 2016)
(approving a jury instruction stating, “the government need not
prove the existence of actual trade secrets and that Defendant
knew that the information in question was a trade secret,” but
instead “must prove that Defendant firmly believed that certain
information constituted trade secrets”); United States v. Liu,
716 F.3d 159, 170 (5th Cir. 2013) (“the relevant inquiry in a
conspiracy case . . . is whether the defendant entered into an
agreement to steal, copy, or receive information that he
believed to be a trade secret—that is, did the defendant believe
that the information he conspired to obtain was proprietary and
was being taken for the economic benefit of someone other
than the owner?”) (emphasis in original); see also United States
v. Yang, 281 F.3d 534, 544 (6th Cir. 2002); United States v.
Martin, 228 F.3d 1, 13 (1st Cir. 2000); United States v. Hsu,
155 F.3d 189, 203–04 (3d Cir. 1998).
Because Shi has not raised the issue, we assume without
deciding that the defendant’s belief, not the actual status of
targeted information, is the correct standard. This
23
understanding best comports with our precedent holding that
impossibility is not a defense to an inchoate crime, as well as
the intent behind 18 U.S.C. § 1832, the statute defining the
crime of conspiracy to commit theft of trade secrets. See
United States v. Lieu, 963 F.3d 122, 126 (D.C. Cir. 2020)
(describing “the settled principle that impossibility is not a
defense to an inchoate crime, so long as the defendant had the
requisite state of mind to commit the underlying offense”).
We easily dispose of Shi’s argument that the evidence was
insufficient to find that at least one co-conspirator reasonably
believed Trelleborg kept its trade secrets secret and took
reasonable measures to keep them so: Ogoe testified that he
understood that he “did wrong” by asking his friends for
“confidential information” that Trelleborg “wouldn’t put . . .
outside.” J.A. 1200. Similarly unavailing is Shi’s argument
that, because the government failed to introduce testimony that
anyone told him the documents he received were trade secrets,
the jury could not conclude that he believed Trelleborg took
reasonable measures to keep them secret.
To the contrary, we find at least three independent bases
the jury could draw upon to conclude that Shi believed the data
he received contained trade secret information that Trelleborg
took reasonable measures to protect. First, the jury heard
testimony that Shi visited multiple competitors’ factories,
including Trelleborg’s. On those tours he experienced
measures including escorts, restrictions on photography,
round-the-clock security and video monitoring, visitor logs,
and keypad entry on restricted areas. The jury could conclude
from this testimony that Shi was aware of the reasonable
measures industry players took to keep non-employees from
gleaning information about their DRBM manufacturing
capabilities.
24
Second, the government offered multiple witnesses whose
testimony allowed the jury to conclude that Shi would
understand that DRBM manufacturers considered their
manufacturing data to be proprietary. See, e.g., J.A. 493
(Cuming’s former president testifying that he told Shi that in
any potential joint venture, “Cuming would not be turning over
[its technology or specifics of formulations] and would keep
control of [its technology], even during the manufacturing
process”); J.A. 858 (Trelleborg’s Technology Transfer
Manager testifying that Trelleborg deliberately withheld depth
information when providing specifications to CBMF in
discussions to purchase CBMI’s macrospheres because “the
combination of density test survivors at a given pressure and
depth is one of the proprietary components of the technology
because that tells you part of the equation of how the foam is
manufactured for a particular application”); J.A. 1305
(Trelleborg’s president, explaining that individuals in technical
roles, like Shi, “understand what is freely available in the
marketplace, such as the [standard] formulations for making a
syntactic foam,” and what is not).
Third, Shi directed Kui Bo to draft CBMI’s own non-
disclosure agreement based off Trelleborg’s non-disclosure
and non-compete. Shi saw Ogoe’s and Liu’s confidentiality
agreements with Trelleborg—instructing them to keep “any
trade secrets or confidential information” learned through their
employment at Trelleborg confidential—and copied them for
CBMI’s use. J.A. 337. Shi’s decision to adopt the same
measures allowed the jury to conclude that he believed
Trelleborg’s use of non-disclosure agreements was a
reasonable means to ensure secrecy. Most tellingly, when in
discussions with Trelleborg in 2015, Shi required Trelleborg to
sign a non-disclosure agreement before he allowed them to test
CBMI’s spheres and expressed some “reluctance to share any
details about CBM[I]’s macrosphere creation process.” J.A.
25
857. Trelleborg’s measures were good enough for Shi then,
and they are sufficient now to show that Shi believed
Trelleborg took reasonable measures to keep its proprietary
information secret.
Finally, we hold that the government introduced ample
evidence to allow the jury to find that Shi believed Trelleborg’s
proprietary data derived value from remaining secret. He knew
that DRBM manufacturers did not let former employees take
this information with them and that they executed non-compete
and non-disclosure agreements to ensure proprietary
manufacturing information would not fall into the hands of
competitors. The jury could also infer that Shi believed this
information was not public because it was valuable where
Cuming and Trelleborg declined to share their complete
manufacturing specifications even when considering a
business relationship with Shi and CBMF. Or it could
conclude that Shi believed this information to be valuable
where he appreciated “how much time Sam saved” CBMI,
given that “there [are] all kind[s] of resin and hardeners.” J.A.
1051–52. To hold otherwise would require us to ignore our
“tremendous deference” to the jury verdict, Long, 905 F.2d at
1576, and our obligation to draw all inferences in the
government’s favor. See Burks v. United States, 437 U.S. 1,
16–17 (1978). We do not find these inferences impermissible,
and we affirm Shi’s conviction.
So ordered.
WILKINS, Circuit Judge, concurring: I write in response to
my concurring colleague’s claim that the government’s brief in
this appeal contained misrepresentations of the record and
improper argument.
First, I note that the government set out the proper standard
of review to guide our consideration of this appeal.
“[C]onsidering the evidence in the light most favorable to the
government and determining whether, so read, it is sufficient
to permit a rational trier of fact to find all of the essential
elements of the crime beyond a reasonable doubt,” we give
“full play to the jury’s prerogative to determine credibility,
weigh the evidence and draw justifiable inferences of fact.”
Appellee Br. at 16–17 (quoting United States v. Laureys, 653
F.3d 27, 31 (D.C. Cir. 2011) (per curiam) and United States v.
Torres, 894 F.3d 305, 311 (D.C. Cir. 2018)). Generally
speaking, one does not expect the writer in a sufficiency of the
evidence case to restate this standard each time it summarizes
or characterizes the evidence. See, e.g., United States v.
Bostick, 791 F.3d 127, 135 (D.C. Cir. 2015) (“We first provide
the factual and procedural background. Because we are
reviewing a jury verdict of guilt, we recount the evidence in the
light most favorable to the Government.”). To the extent that
the concurring opinion suggests that the government’s failure
of reiteration was an attempt to mislead, e.g., Concurring Op.
at 3–6, I respectfully disagree.
The concurrence also criticizes the government for
pointing to Shi’s co-conspirators’ plea agreements in its brief,
see Appellee Br. at 22–23, claiming that including them was
improper because it was meant to suggest that those plea
agreements could be used as substantive evidence of Shi’s
guilt. Concurring Op. at 2–3. But this criticism, too, appears
unfounded. On my reading, the government mentioned the
guilty pleas to emphasize that Shi was the boss of admitted
conspirators rather than their gofer, distinguishing this case
from United States v. Gaskins, 690 F.3d 569 (D.C. Cir. 2012),
2
and to explain why the jury could have rationally convicted
Shi, notwithstanding Bo’s testimony that he and Shi and Ogoe
and Liu never agreed to steal trade secrets, see United States v.
Pardo, 636 F.2d 535, 545–46 (D.C. Cir. 1980) (guilty plea may
be used for impeachment). As the government argued in its
brief, “[e]ven if Bo did not believe they had agreed to steal
Trelleborg’s information, . . . that belief is not inconsistent with
Bo’s admissions that they agreed to commit the charged
offense.” Appellee Br. at 23. The government’s argument is
essentially the same as the District Court’s reasoning to which
it cites (and to which my concurring colleague takes no
exception):
Because Bo himself never took anything from
Trelleborg, it may well be true that he did not
agree (with Shi or anyone else) to personally
“steal” Trelleborg secrets. That does not mean,
however, that he did not agree to “convey” or
“receive” or “possess” Trelleborg’s trade
secrets, each of which could support a
conviction on Count 1 and each of which a
rational juror could have found that he did.
Finally, the Government introduced Bo’s plea
agreement, in which he admitted to conspiring
to steal trade secrets. Gov. Ex. 220. While the
defense accurately points out that the jury was
instructed not to infer Dr. Shi’s guilt from Bo’s
decision to plead guilty, Jury Inst. No. 15,
nothing prevented the jury from considering the
plea in assessing Bo’s trial testimony. Having
done so, a rational juror could have concluded
from the plea that Bo was part of the charged
conspiracy, as he confirmed on direct
examination, notwithstanding his testimony on
3
cross and without drawing any impermissible
inferences about Dr. Shi.
J.A. 90.
Finally, to the extent the concurring opinion finds
mischaracterizations of the evidence, I find none. Criticisms
such as whether the government should have characterized
formulas appearing in textbooks as “purely theoretical” rather
than simply “theoretical” or a pay raise as “more” rather than
“substantially more” are rather tenuous grounds for claims of
misrepresentation when viewed in context. Concurring Op. at
3–4. The concurrence also complains that the record proves
the “exact opposite” of the government’s contention that Shi
could not use reverse engineering to learn how to build
macrospheres, because Trelleborg’s Dr. Carlisle admitted that
with “special tools,” J.A. 759, it was possible to determine the
chemical composition of spheres using that method.
Concurring Op. at 3. But Dr. Carlisle also explained that to
successfully manufacture these macrospheres, one needs to
know the wall thicknesses of the various chemical layers
comprising the sphere, J.A. 758–59, and there was no evidence
that reverse engineering could produce that information. There
was also no evidence that Shi had the “special tools” necessary
for the limited reverse engineering that was even feasible, all
of which supports the government’s contention (and is far from
proving the “exact opposite”). And I disagree with my
concurring colleague that there was no record evidence that
Ogoe sent empirical results from hydrostatic pressure tests to
Shi. Concurring Op. at 3–4. Ogoe sent Shi a portion of
Trelleborg’s production standards, including target densities
and burst PSI at specific depths, on January 28, 2015, long
before CBMI had a hydrostatic pressure test machine. J.A.
2017–20; see also J.A. 2004–16. Per Dr. Carlisle’s testimony,
this chart told a manufacturer the target density for a sphere
4
made of a certain material, J.A. 799, and that sphere’s burst
PSI, “the pressure at which one of these spheres with a target
density as given would have been tested to reassure ourselves
that the batch was fit for purpose.” J.A. 800–01 (emphasis
added).
****
I agree, of course, that the government must not overreach
in the course of criminal prosecutions. That said, the concerns
raised by my concurring colleague are a thin reed upon which
to base such a claim, and they certainly do not merit his rebuke
in the Federal Reporter. Such strong medicine should be
reserved for instances where one does not have to strain to find
a malady.
SILBERMAN, Senior Circuit Judge, concurring: Although
this case is close, I am persuaded by the Court’s opinion with
one exception: its footnote 2. I think our precedent, particularly
Curley, properly understood, establishes the rule of equipoise.
Curley v. United States, 160 F.2d 229, 232–33 (D.C. Cir.
1947). The rule resolves the tension between two doctrines of
criminal law. On the one hand, convictions must be established
beyond reasonable doubt, on the other hand we must defer to
reasonable jury factual determinations. In Curley, we explained
that reconciliation in a two-step analysis. First, we give a jury
the benefit of all reasonable factual inferences supporting a
verdict of guilt, then we balance the evidence (without
inferences on behalf of the defendant) for and against the
defendant’s guilt. If the balance is approximately equal we
must reverse the conviction because a reasonable juror must
necessarily have reasonable doubt. Thus, courts now
summarize the rule:
If the evidence viewed in the light most
favorable to the verdict gives equal or nearly
equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged,
[a] court must reverse the conviction, because
in such a case a reasonable jury must necessarily
entertain a reasonable doubt.
United States v. López-Díaz, 794 F.3d 106, 111 (1st Cir. 2015)
(cleaned up). Of course, both the Court’s and my views are
dicta because we agree that in this case the evidence is not in
balance. It reasonably permits the finding of guilt.
But I am quite troubled by the Government’s brief; it
almost caused me to dissent. When one turns to its argument
section, one encounters a number of misrepresentations. At
best, some of them are inferences (although characterized as
2
facts) that might be drawn from the record.1 There are also out
and out misstatements of fact—not at all legitimate
inferences—and at least one illegitimate argument.
Starting with the last point, it was all too easy for the jury
to conclude that given the small size of CBMI and the guilty
conspiracy pleas of Bo and Ogoe, that Shi (the boss) must have
been a conspirator as well. The district judge, mindful of this
problem, carefully instructed the jury that it was not to consider
the pleas of Bo and Ogoe as evidence against Shi.
Before us, however, the Government—perhaps thinking
we were entitled to draw inferences forbidden to laymen—
stated that “Shi was the ‘micromanaging’ boss of a very small
company in which two other members pleaded guilty to the
charged conspiracy.” Appellee Br. at 22 (emphasis added).
And “the jury also saw Bo’s plea agreement wherein he
admitted he joined a ‘conspiracy to Commit theft of Trade
Secrets’ the same charge leveled against Shi.” Appellee Br. at
23 (emphasis added). In other words, we should credit the jury
drawing an inference directly contrary to the court’s
instruction. As pointed out in the Majority opinion, it was
perfectly appropriate that Bo’s plea agreement be used to
discredit Bo’s testimony, which was that neither he nor Shi had
1
The distinction between what the record says and what can be
inferred from the record is essential given our standard of review.
We consider reasonable inferences that a jury could draw in support
of its verdict. But where necessary inferences are unreasonable, or
where one cannot reasonably ignore contrary facts, we may be
required to reverse. See Curley v. United States, 160 F.2d 229, 232–
33 (D.C. Cir. 1947).
The Government’s statement of facts was not inaccurate as was
the treatment of facts in its argument.
3
entered into an agreement to steal trade secrets. But it was quite
illegitimate to imply Bo’s plea agreement was evidence against
Shi.
Now to the Government’s misrepresentations.
1. The Government asserts, “Because of the way drill riser
buoyancy modules are made, it was obvious that trying to
extract the spheres would damage them beyond the point of
useful reverse engineering, prohibiting that technique as a
source of information.” Appellee Br. at 20 (emphasis added).
But the record says the exact opposite. Dr. Carlisle testified that
some reverse engineering of the spheres is possible, and that
with the right tools, one could determine, inter alia, the
sphere’s chemical composition.
2. The Government astonishingly claimed that Dr. Shi paid
Ogoe “substantially more” than he was paid at previous jobs.
Appellee Br. at 19. But the record indicates only that Ogoe was
paid “more”—it could have been a trivial amount (and
probably was since otherwise the prosecutor would have
elicited the amount).
3. The Government tells us that “Ogoe and Liu both told
[Shi] during their interviews that they would need Trelleborg
data to do what Shi wanted them to do.” Appellee Br. at 19
(emphasis added). But there is nothing in the record supporting
such a statement in Liu’s interview. Bo did testify that Shi told
him that Liu had some technical data from Trelleborg. But
there was no evidence Liu told Shi that Liu needed the data.
That’s another improper exaggeration stated as fact.
4. The Government asserts, “Ogoe was sending Shi testing
data on spheres when CBM International had neither any
manufacturing capacity to make spheres nor a pressure test
machine to generate the results.” Appellee Br. at 20 (emphasis
4
added). But this claim—which would be highly persuasive if
true—is unsupported. The cited record merely shows that Ogoe
testified that he received “information about a hydrostatic test”
from Uche when CBMI did not have hydrostatic testing
equipment. Nowhere in the record is there evidence that Uche
ever sent Ogoe empirical test results from hydrostatic tests or
that Ogoe sent such results to Shi. The only hydrostatic test
information that Ogoe received from Uche and sent to Shi is a
1-page outline of the procedure for a hydrostatic test—which
is so simple that it plainly would not require having a pressure
test machine to develop. To the extent the record shows Uche
sent Ogoe any empirical information, Ogoe testified that he
actually deleted all confidential data and entered his own test
results into the formatted excel table, which he then sent to Shi.
That is exculpatory vis-à-vis Shi.
5. The Government claims that “what was publicly
available in, for example, textbooks, was theoretical, which is
of limited use in manufacturing because the theory presumes
the spheres are perfectly round when in reality, they never
are—and are correspondingly weaker.” Appellee Br. at 26
(emphasis added). However, its brief refers only to Dr.
Carlisle’s testimony that theoretical formulas about the
strength of spheres is of limited use in manufacturing because
the spheres have imperfections. Nothing in the record shows
that textbooks—much less all publicly available information—
is purely theoretical.2 Again, this is an impermissible
exaggeration.
6. The Government asserts that Dr. Shi hired both Ogoe
and Liu “knowing they would use Trelleborg’s secrets to do
their work for him.” Appellee Br. at 19. The Government does
2
Below, the Government opposed the admission of such textbooks
into evidence.
5
not cite the record in support of the claim because no such
citations are available. The Government presents this as a
statement of fact whereas it is at most a legitimate inference,
which the Majority recognizes.
7. The Government argues, “The evidence established that
Shi’s plan for growing a drill riser buoyancy modules company
was to misappropriate others’ technology.” Appellee Br. at 24
(emphasis added). This is false. There is no evidence that Dr.
Shi’s initial plan involved anything other than ordinary legal
business practices. The Government cites to translations of Dr.
Shi’s handwritten notes stating, “Recruit talents [from other
companies] – hire part time, high level personnel, status not
sensitive, competitors are more willing to provide detailed
information, enter the stage of experiment and testing.” Shi’s
notes went on to say that he wanted to “Collect information,
detailed information, digest and absorb.” But the notes make
no mention of misappropriation or theft.
Further seeking support for this statement, the
Government points to Shi’s application to China’s Thousand
Talents Program, where Dr. Shi stated that his goal for CBM-
Future was to: “Carry on . . . the structural design, material
design and process design of the buoyance materials for
drilling riser, and introduce and digest/absorb the relevant,
critical U.S. technology and build China's first deepsea drilling
buoyance material production line to satisfy the needs of our
country's marine engineering development.” There is no
indication that Shi had a plan to misappropriate the technology
rather than purchase it, scour it from public sources, and hire
subject-matter experts who can accelerate legitimate research
and development aims. To be sure, a jury might conclude that
seeking to acquire technology and doing so through recruiting
talents from other companies raises a possible—although
rather weak—inference of an intent to misappropriate
6
technology. But the Government’s flat factual assertion is
unjustified.
As an alumnus of the Department of Justice, I regard the
Government’s brief as particularly disheartening. That the case
was close is no excuse for distorting the facts. “[T]he
Government should turn square corners in dealing with the
people.” St. Regis Paper Co. v. United States, 368 U.S. 208,
229 (1961) (Black, J., dissenting). This is particularly true in
criminal cases and perhaps even more so when dealing with a
politically unpopular defendant. Still, it may be thought that my
criticism of the Government’s brief is too demanding, and
therefore I welcome Judge Wilkins’s defense of Government
counsel.