TEMPLE UNIVERSITY PHYSICS PROFESSOR XIAOXING XI AND THE DISMISSAL OF WIREFRAUD CHARGES*
Albert M. Chang
Department of Physics, Duke University
In the early morning of May 21 2015, FBI agents burst into the home of Prof. Xiaoxing Xi and his family and arrested Prof. Xi. The agents brandishing weapons, forcibly dragged Prof. Xi away in handcuffs. With a search warrant, the agents searched their home and seized belongings[http://www.usatoday.com/story/opinion/2015/09/18/xiaoxing-xi-china-spy-fbi-state-visit-column/32560009/].
On the same day, Prof. Xi was released on a USD$100,000 bond pending trial, under travel restriction. Despite the fact that following the arrest, the treatment of Prof Xi was not egregious, nonetheless, the way in which the arrest played out was shocking and terrifying for Prof. Xi and his family.
This signaled the beginning of an ordeal for Prof. Xi and his family. The arrest pertained to an indictment, unsealed on May 21, in which the US Department of Justice (DOJ) charged Prof. Xi, a physics professor at Temple University and a naturalized American citizen, with 4 counts of wire fraud. The indictment alleged that in four email communications with his collaborators in China, Prof. Xi illegally shared sensitive US technology with entities in China, and sought to use proprietary information regarding a special device, invented at a US company for use in MgB2 (magnesium diboride) superconductor thin film technology, for personal gains. More specifically, the federal prosecutors charged Prof. Xi with attempted use of proprietary information and his reputation as a world leaderin the field of MgB2 technology to obtain lucrative and prestigious positions in China.
Please see http://www.justice.gov/usao-edpa/pr/university-professor-charged-wire-fraud-scheme and indictment pdf at bottom of webpage.
On Friday, May 22, his University, Temple University, suspended his duties as the chair of the physics department and classroom teaching responsibilities so that he can focus on his defense, with a possibility of returning to full duties (including the department chairmanship) if the case is dismissed. He remained on the faculty as a regular professor (he holds a Chaired professorship). Although in principle, he was still able to conduct research, in the face of the storm and under the constant public and media scrutiny, Prof. Xi and his family's life has been turned upside down. Theall-consuming task of fighting the charges has been a tremendous drain on his and his family's well- being.
To fight the charges, Prof. Xi retained the service of a renowned Washington D.C. based attorney Peter Zeidenberg. On September 11, the US DOJ dropped charges against Prof. Xi, as evidence emerged of erroneous interpretation of the scientific material sent via email by Prof. Xi to his Chinese colleagues. The FBI had failed to carry out due diligence while putting together the indictment, having relied on the interpretation of a single agent, who had little expertise in the field of MgB2 superconductors, instead of consulting the appropriate scientificexperts in the field.
As was widely reported in the media, the resolution of the legal case against Prof. Xi occurred officially on September 11. It was announced that the US DOJ had dropped charges, as a result of the testimony of several leading experts in the field of MgB2 thin film technology. The experts included Prof. Paul Chu, of the University of Houston, a world leader in the field of superconductivity and high temperature superconductors, and Mr. Ward Ruby, the inventor of the device in question, as well as Dr. David Larbalestier, Dr. John Rowell, and Dr. Venky Venkatesan. Dr. Ruby testified that the blue-print of interest, which Prof. Xi had sent to colleagues in China, was NOT the blue-print for the device he (Mr. Ruby) had invented. That device, a pocket heater, was the central piece in the government’s argument for indictment. In the end, it became clear that Prof. Xi had done nothing wrong or out of the ordinary, and had been carrying on in a manner that 90 % of scientists of good standing would do.
This key piece of information points to the unbelievably shoddy work done by the FBI and the DOJ, in vetting the key evidence, before going to the grand jury and convincing the jury using the unsubstantiated and erroneous evidence, to hand down an indictment against Prof. Xi. In a case which is of great sensitivity domestically and internationally, with clear ramifications in the current climate of heightened suspicion regarding economic, industrial espionage and national security issues, such unprofessional behaviorshould not and cannot be tolerated.
The dropping of charges was widely welcomed by Prof. Xi and his family, who were greatly relieved by this development, by our scientific community, as well as many non-ethnically Chinese scientists. At this point, it is clear that the case brought by the DOJ against Prof. Xi has no merit whatsoever, and Prof. Xi is completely innocent of the charges.
Prof. Xi's case was one among a slew of recent high-profile cases brought by US federal prosecutors against ethnic Chinese scientists and engineers. All of these cases pertain to the alleged illegal transfer or theft of sensitive US technology and infrastructure information by Chinese scientists and engineers, as well as economic and industrial espionage and the transfer of information critical to US national security.
Another well-publicized recent case was that of Sherry Chen, a hydrologist at the National Weather Service and a naturalized US citizen. The case ended in acquittal after it was discovered that the information provided to herChinesecolleague was availablein the publicdomain.
The arrest of Prof. Hao Zhang, a Chinese National and an engineering professor in Tianjin University, at the Los Angeles airport on May 16 upon his arrival into the United States, was handled clumsily. Prof. Zhang was invited to present a paper at a microwave conference, and was unable to properly
complete his entry into the US. This later resulted in his re-arrest by the US Department of Immigration, even after he had posted a USD$500,000 bond and was freed on his first arrest. He was finally released under order of a judge, and remains in the US awaiting trial[http://www.reuters.com/article/2015/07/31/us-china-usa-espionage-idUSKCN0Q41CP20150731].
These are among the most widely reported cases in the media.
Cases, such as those of Prof. Xi and Sherry Chen, raise the specter of the inappropriate targeting of Chinese Americans scientists and engineers, who are, by and large, faithful and loyal US citizens. We, as a community, should by all means, engage in lawful and proper conduct in our scientific exchanges. Such a code of conduct extends to foreign scientists of ethnic Chinese background, and in fact to all scientists, when working in the US and/or in collaborations with US colleagues.
Regarding the cases at hand, despite the admission of errorregarding the key evidence, the DOJ and FBI have yet to apologize to Prof. Xi, orto Sherry Chen in her case. It is also likely that both of these scientists'activities will continually be monitored forthe foreseeablefuture, and the DOJ appearto have indicated that they reserves the right to bring charges in the future.
As a physicist, Prof. Xi's indictment and arrest hits particular close to home for members of the ethnically Chinese physics (and astronomy) community. Immediately following his arrest, the leadership of the OCPA (The International Organization of Chinese Physicists and Astronomers) began to monitor the case closely. At the same time, OCPA members were calling for action on behalf of Prof. Xi. It was also clear at the time that in addition to concerns about the impact on Prof. Xi as an individual, this case could have profound and detrimental consequences for all ongoing US- China scientific exchange and collaboration; it left many colleagues wondering whether one day, FBI agents would be knocking on their door to arrest them for their role in past and present collaborations. Prof. Xi is widely regarded as a scientist of great integrity. If this could happen to him, it could presumably happen to anyone of us within the community.
In addition to maintaining contact with Prof. Xi through well-respected colleagues, the OCPA leadership, including the current and several past OCPA presidents (Keh-Fei Liu, Jen-Chieh Peng,Cheuk-Yin Wong, and members of the Executive Council), contacted the leadership at the American Physical Society. The purpose was first to safeguard the proper treatment of Prof. Xi throughout his ordeal by the US government and by the media. And secondly, to push for a conversation to begin to address the larger issue of the protocol and guidelines for US-China and US-Internationalscientific exchange and collaboration. OCPA has been holding an ongoing conversation with Prof. Sam Aronson, President of APS, and Dr. Kate Kirby, APS Chief Executive Officer. In our conversation, Prof. Aronson and Dr. Kirby have repeatedly expressed continued strong support for US-Chinascientific exchange. Furthermore, OCPA is pushing for an open forum focused on Prof. Xi's and related cases, as well as engaging representatives of the US funding agencies, and US governmental experts on issues pertaining to international patents, intellectual property rights, etc. The possibility of holding such a forum at the 2016 APS March Meeting in Baltimore has been brought to the table. These developments can be found on the OCPA website:
The pursuit of those who flaunt the law, when done properly, can and will benefit all of us, as well as benefit the advancement of science world-wide. At the same time, prejudice, pre-conceived
presumption of guilt, rush-to-judgment scenarios and efforts to find scapegoats, which often arise in the absence of any hard and substantiated evidence, must be fought against.
To the end, Asian organizations, such as the Committee of100 [http://committee100.org], along with the National Council of Chinese Americans (NCCA), Asian Americans Advancing Justice (AAJC), Asian Pacific Islander American Public Affairs Association (APAPA), Chinese American Citizens Alliance (CACA), National Asian Pacific American Bar Association (NAPABA), and OCA-Asian Pacific American Advocates, have recently sent a clearly worded letter to the US Attorney General, the honorable Loretta E. Lynn, to highlight and protest the targeting of ethnicChinese scientists and engineers.
In addition, Committee-100 has held a discussion forum on Sept ember 16, in Washington, D.C. The speakers included Sherry Chen, Prof. Xi, and theirattorney PeterZeidenberg.
As to Prof. Xi’s personal situation, there is a long road ahead to redress the damage done, and he and his family deserve all of our support. In such cases, aside from the personal hardship that the wrongfully accused must endure, the toll on his or her career, reputation, financial and emotionwell-being could span many years. In the case of hydrologist Sherry Chen, despite the acquittal, she was fired from her position at the National Weather Service. The reason cited was in part the perception that she had access to sensitive information vital forUS national security.
Moreover, the spillover from these cases has the potential to seriously damage the reputation of the entire community as a whole. In the worst case scenario, it can adversely affect ethnically Chinese scientists'/engineers' ability to compete for research funding, and their ability to carry out cutting- edge-research.
To begin addressing these issues on a larger, societal scale, US Congressman, Ted Lieu, along with 21 congressional colleagues, have sent a letter regarding racial targeting on Sherry Chen’s behalf to the US Attorney General Loretta E. Lynn. The letter was signed by Lieu, Congresswoman Judy Chu, Congressman Mike Honda, and Congresswoman Grace Meng, among many supporters. In the letter, they described the handling of the Sherry Chen case as a civil and constitutional rights issue. Representative Lieu and his colleagues are also calling for Ms. Chen’s reinstatement in her job at the National WeatherService.
At present, OCPA is in contact with the Committee-100, and will continue to work to advance our agenda of protecting the civil rights and welfare of the ethnic Chinese science community, to come to the aid of those wrongfully targeted, and to work with the APS, and the US government to help pave a way to a brighterfuture forthe advancement of science on the international scene.
*It was suggested by K K Phua (Editor-in-Chief of Asia PacificPhysics Newsletter) that Professor Albert Chang (Duke University) be invited to submit this article in his personalcapacity.