- 最后登录
- 2016-11-5
- 在线时间
- 5640 小时
- 寄托币
- 58896
- 声望
- 477
- 注册时间
- 2005-4-8
- 阅读权限
- 100
- 帖子
- 880
- 精华
- 4
- 积分
- 53701
- UID
- 204913
 
- 声望
- 477
- 寄托币
- 58896
- 注册时间
- 2005-4-8
- 精华
- 4
- 帖子
- 880
|
1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Newport News Division
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 4:13cr034
)
BO JIANG, )
)
Defendant. )
DEFENDANT DR. BO JIANG’S MEMORANDUM IN OPPOSITION TO GOVERNMENT’S MOTION FOR REVOCATION OF RELEASE ORDER
COMES NOW, the defendant Dr. Bo Jiang, by and through his attorney and submits this response Memorandum in Opposition to the Government’s Motion to Revoke the decision by United States Magistrate Judge Lawrence R. Leonard, pursuant to Title 18, United States Code, Section 3142, to release Jiang on bond with conditions pending his May 29, 2013 trial.
Defendant respectfully requests that this Court deny the government’s motion to detain him and reinstate the Order of Release that would have been issued granting defendant’s release with conditions.
I. Procedural History
On Saturday, March 16, 2013, Jiang was arrested at the Washington Dulles International Airport in Northern Virginia following a prolonged interrogation. Jiang was arrested on probable cause that he had made materially false statements to a federal agent, in violation of Title 18, United States Code, Section 1001. That evening Jiang was transported to the Norfolk City Jail and held there for the remainder of the weekend.
On Monday, March 18, 2013, the government presented a criminal complaint charging a false statements offense, warrant for Jiang’s arrest and affidavit in support to U. S. Magistrate Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 1 of 19 PageID# 157
2
Judge Douglas E. Miller. The court issued the complaint and arrest warrant. That afternoon at
4:34 p.m., Jiang appeared before U.S. Magistrate Judge Leonard in Norfolk Federal Court for an
initial appearance pursuant to Fed.R.Crim.P. 5. Upon the government’s motion for temporary
detention under 18 U.S.C. § 3142, Jiang was detained. A preliminary and detention hearing were
scheduled for March 21, 2013. Counsel was appointed to represent Jiang under the Criminal
Justice Act on March 19, 2013.
On Wednesday, March 20, 2013, the government presented and obtained a one count
indictment charging Jiang with making materially false statements in violation of 18 U.S.C.
1001; a Class D Felony, which carries a maximum sentence of 5 years’ imprisonment, $250.00
fine, 3 years of supervised release and $100.00 special assessment as possible penalties. The
United States Sentencing Guidelines call for a sentence of 0 to 6 months’ imprisonment upon a
conviction for this offense. Additionally the guidelines provide for a sentencing option of no
incarceration.
On Thursday, March 21, 2013, Jiang appeared before Magistrate Judge Leonard for a
detention hearing, as the indictment rendered the preliminary hearing moot. Jiang’s counsel
moved for a five day continuance under 18 U.S.C § 3142 (d) and (j). The motion was granted
and the hearing was continued until March 28, 2013.
On Thursday, March 28, 2013, a detention hearing was held in accordance with the
statute before Magistrate Judge Leonard. At the conclusion of the hearing, Judge Leonard denied
the government’s motion for detention and ordered Jiang’s release with restricted conditions that
include house arrest, electronic monitoring with GPS, third party custody, travel restrictions, and
a $10,000 unsecured bond. The government requested a stay of the release order and the next
day, on Friday, March 29, 2013 the government moved for a stay and revocation of the release
Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 2 of 19 PageID# 158
3
order. Chief United Stated District Judge Rebecca Beach Smith granted the government’s request and scheduled the matter for a hearing.
II. Statement of Facts
Defendant Dr. Bo Jiang is a 31 year-old man born and raised in Chengdu1, Sichuan Province, People Republic of China (“China”). Chengdu is one of the most important economic, transportation and communication centers in Western China. Its metropolitan area has more than 14 million inhabitants. Chengdu is the center of higher education and scientific research in Southwest China with several national and regional universities. In June 2004, Jiang obtained a Bachelor of Information Engineering at Chengdu University of Technology. In June 2007, Jiang obtained a Master of Science in Communication and Information Engineering from the University of Electronic Science and Technology of China (UESTC). UESTC is one of the premier national universities in the region. UESTC enjoys co-training and sister University relationships with numerous international organizations and universities.
On August 11, 2007, Jiang arrived in the United States of America to study electrical and computer engineering at Old Dominion University. He entered the United States on a valid student visa. He obtained his Ph.D. in Electrical and Computer Engineering in August of 2010. While at Old Dominion University (“ODU”) Jiang lived close to campus. In December 2012, he moved to his current residence. While at ODU, Jiang’s academic advisor and mentor was Dr. Zia-ur-Rahman. Dr. Rahman left the University to work at NASA and recruited Jiang to work with him at NASA as a researcher on NASA Langley’s Multi-Scale Retinex (MSR), an image-enhancing project developed by NASA researchers at Langley’s Visual Information Processing (VIP) lab. The technology was patented in 1999, commercialized and sold as a consumer
1 Chengdu is the capital of the Sichuan Province in Southwest China. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 3 of 19 PageID# 159
4
product. The technology its uses and patents are published in the NASA website. See Defendant Exhibit 2.
Around October 2010, a cooperative agreement between National Institute of Aeronautics (NIA) and NASA provided funding for Jiang to work for approximately two years at NIA on the VIP project. Jiang would be working on generic work resulting from fundamental research with no classified sensitive or restricted information.
Dr. Rahman, Jiang’s mentor at ODU, died in a car accident in December 2010. In January 2011, Jiang was hired as a Research Scholar at NIA to work on NASA’s MSR project. Funding for the position comes from NASA appropriations.
In approximately July, 2011 Jiang was given an unescorted badge at the NASA building where he and his colleagues working on his project are located.
From July 2011 until November 2012, Jiang did most of his work at his NIA office. He would come to NASA periodically always during regular working hours between 6:00 AM and 6:00 PM on weekdays and mostly for meetings. He worked in a group and notified his NASA counterparts before arriving.
Personnel from the VIP lab at NASA requested to have Jiang work on the premises. The request was approved and Jiang’s funding was extended to September 2013 and he was promoted to Research Scientist.
On August 15, 2011, the United States Department of Commerce, Bureau of Industry and Security promulgated a rule in 15 CFR part 744, published in the Federal Register, Volume 76 Number 157 50407 through 50413 entitled “Addition of Persons Acting Contrary to the National Security of Foreign Policy Interests of the United States to the Entity List: An Implementation of Additional Changes from the Annual Review of Entity List.” This rule amended the Export
Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 4 of 19 PageID# 160
5
Administration Regulation (EAR) by adding 15 persons under 20 entities to the Entity List. The persons being added to the Entity List have been determined by the United States Government to be acting contrary to the US policy or interests. Additionally the rule clarifies a previous entry, namely the Chinese Academy of Engineering and Physics by listing Jiang’s graduate school alma mater, UESTC as one of the nineteen aliases or alter egos to the Chinese Academy of Engineering and Physics.
UESTC has signed scientific technological contracts with many companies of international renown like IBM, Intel, Texas Instruments, Onsemi, Samsung, Epson, ADI, Cisco, US National Semi-Conductor and has established more than 50 joint laboratories. The University also maintains close and friendly ties with more than 300 Universities, Institutes and Companies in 27 countries all over the world. It has signed joint training programs with more than 20 Universities and Institutes. Student exchange programs exist between UESTC and Northwestern University, UCLA, University of Missouri, Ohio State, University of Glasgow in the United Kingdom, Masstricht University of the Netherlands, Dublin Institute of Technology, and Berlin Institute of Technology and many others.
The College of William Mary, whose chancellor is Robert Gates, former United Secretary of Defense, entered into a “Sister University Agreement” with UESTC in December 2010. At the ceremony, William and Mary President Taylor Reveley stated “UESTC is one of the most distinguished universities in China…we look forward to an exchange of faculty, students in academic programs and cultural exchanges.” On June 6, 2012, it was announced that William and Mary’s and UESTC’s math departments were partnering to collaborate in research and promote exchanges between undergraduates and faculties of both universities. Jiang can hardly be faulted for attending and receiving an advanced degree from a highly regarded Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 5 of 19 PageID# 161
6
university, with an international reputation, located in his home city. By the time that the Department of Commerce added Jiang’s alma mater, UESTC to the “Entity List” in 2011, Jiang had already been graduated by almost four years. He had obtained his Ph.D. from ODU and was already employed by NIA and working on a NASA contract.
In September 2011, NASA purchased a laptop and external hard drive for Jiang to conduct his work. Through a property loan agreement the laptop and hard drive were turned over to NIA so that Jiang could use them.
Throughout his tenure at NIA/NASA VIP program, Jiang continued to work on non-classified, non-sensitive, and non sensitive but unclassified (SBU) matters involving fundamental research assigned to him by NASA project managers. Jiang sought and obtained permission from NASA Export Control Officers to publish papers – co-authored, edited and reviewed by English speaking peers – regarding his work.
Jiang continued to maintain his legal immigration status in the United States after his graduation from ODU. His student visa was extended under the Optional Practical Training (OPT) program. Jiang and his employer had hopes that he would remain employed and NIA was planning to assist him in ultimately obtaining a permanent resident status.
In November 2012, Jiang planned to travel home for a vacation. He requested and received permission from his supervisor at NASA to take his government-bought laptop and hard-drive with him. Previously, in 2011 when he went on vacation to China, he requested permission via email to take the laptop and hard drive with him. Congressman Frank R. Wolf, in his press conference on Jiang’s arrest on March 18, 2013, corroborates Jiang’s claim by mentioning that NASA’s “investigative report identified that Jiang’s supervisors at NASA and NIA had allowed him to take his work, and volumes of other NASA research back to China for a Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 6 of 19 PageID# 162
7
period of time.”2 He traveled to China on November 5, 2012 with those two items and with the understanding that he had followed proper procedures. While in China, Jiang remained in email contact with his NASA superiors regarding his work.
In November 2012, while in China, Jiang completed and submitted his paperwork to obtain an F1 Visa to the United States Consulate General in Guangzhou. Subsequently, he attended a personal interview with a State Department consular officer at the United States Consulate General in Chengdu. His F1 Visa was issued shortly thereafter. While Jiang was in China, NASA began an investigation about his contract, the kind of laptop that the government had purchased for his work and the nature of the work that Jiang performed.
He returned to the United States on December 18, 2012. On December 19th, 2012 Jiang was asked to return the government purchased Dell Precision M4600 laptop and his hard-drive and did so. He was told that his work with NASA projects was suspended and his access to NASA terminated. He was placed on paid administrative leave. Shortly thereafter, security personnel at NASA obtained the laptop and external hard-drive. NASA Information Technology personnel from Center Network Security conducted an examination of the equipment and determined that no International Traffic in Arms Regulations (ITAR) violations had occurred. NASA administrators including the Inspector General were informed of the results of this examination. Furthermore, the work and the data that Jiang had access to was already patented and published in scholarly papers and presentations and in NASA’s own public website. Since Jiang’s scope of work at NASA did not fall under Export Control or ITAR restrictions, efforts were made to have Jiang continue to work at NIA on the NASA project. However, Jiang was terminated on approximately January 11, 2013.
2 The Hon. Frank R. Wolf , Press Conference on Bo Jiang Arrest, March 18, 2013, p 2. Defendant Exhibit # 2. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 7 of 19 PageID# 163
8
Jiang immediately began seeking alternative employment in the United States and sent out more than 100 resumes and/or applications. He was oblivious to anything that was going on at NASA or by law enforcement and simply wanted to stay and work in the United States. Because he was unable to secure employment, his Visa expired on February 8, 2013 with a 60-day grace period to depart the country. On February 28, Jiang made arrangements to return home on April 5, 2013, before his VISA expired. In early March 2013, Jiang requested the return of his personal files and effects that he had kept in his workspace while working for NIA/NASA.
At some point in time before March 7, 2013, an employee from NASA contacted US Representative Frank R. Wolf, a member of the U.S. House Appropriations Committee which funds NASA. The NASA employee informed the Congressman’s office that Jiang was employed at NASA, took his government computer to China, and had attended UESTC. On March 7, 2013, Congressman Wolf made public pronouncements about Dr. Jiang and sent letters to the director of the FBI and the U.S. Attorney for the Eastern District of Virginia, requesting that an investigation of Dr. Jiang and his contract with NASA at Langley be investigated. (See Defendant’s Exhibit 2.)
On March 13, 2013, Paul Martin, Inspector General (IG) of NASA, testified before the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies (Frank R. Wolf, Chairman). Note the following testimony:
WOLF: “the career people who have brought security related allegations to their local OIG office report to us that their claims were not adequately dealt with.”
MARTIN: “I respectfully disagree with that. If you are referring to the specific case at Langley, that was brought to your attention by your staff last week, I think that was being handled appropriately. There was consultation between the Inspector General’s office and the Office of Security at Langley, beginning in December. And sat down in a meeting in early January and decided that for the present at least, that this would be handled as a Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 8 of 19 PageID# 164
9
security matter. And that’s the way it proceeded. NASA Counter-Intelligence also was of that opinion. NASA Counter-Intelligence does not work for me.3
Later in the hearing, Martin further addressed the concerns of espionage raised by Congressmen Fattah and Culberson with the following statement:
MARTIN: I don’t know that to be true. And in fact, the people closest to the ground, the people charged with espionage cases within the NASA structure – there is a Counter-Intelligence – they don’t believe it’s in that. My understanding is that they don’t believe it’s an espionage case. They believe this is most appropriately – has been most appropriately handled as a security matter, which is why the Office of Security is the group that did the investigation down at Langley.4
According to the Criminal Complaint filed in this matter, the FBI opened an investigation against Jiang on March 13, 2013. By that point, the Government (NASA) had been in possession of Jiang’s work computer and hard drive for almost three months, had examined the computer and hard drive and determined that there were no ITAR violations. However, it would still be another week, before the FBI took possession of Jiang’s government equipment.
Although Jiang was unaware that an investigation had been opened against him, he did become aware that Congressman Wolf was making yet-to-be-proven public accusations against him, accusing him of being a spy. These accusations were printed in a number of national and local newspapers. Frightened, embarrassed, and without power, recourse or means of defense against a powerful United States politician, Jiang accelerated his plans to depart the country and on March 14, 2013, he changed his flight plans to leave on March 16. He had been terminated, tried unsuccessfully to get a new job, and now after being publically maligned without due process knew that he had zero chance of employment.
It is undisputed that by March 14, 2013, FBI agents knew of Jiang’s identity and address and had just opened an investigation against him. According to the affidavit, they learned that
3 Partial Transcript of the Hearing is included as United States Exhibit 2; p16 of transcript, p2 of exhibit.
4 Partial Transcript of the Hearing is included as United States Exhibit 2; p31 – 32 of transcript, p10 of exhibit. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 9 of 19 PageID# 165
10
Jiang had changed his travel arrangements. The FBI did not approach him to question him nor obtain a search warrant to search him or his residence before the intended departure date of March 16. They knew that they did not have enough probable cause to arrest him for any crime. Instead they waited until March 16, followed him to the Norfolk airport, allowed him to check his luggage and fly to Dulles without “encountering”, engaging, stopping, questioning or arresting him. FBI agents with the necessary assistance of Department of Homeland Security agents waited until Jiang was about to board his flight to China to arrange for a “consensual encounter” as part of a “border search.” Although the FBI reportedly had opened an investigation against Jiang for alleged Arms Control Act violations, it is DHS Homeland Security Investigation agents who are empowered to conduct border searches who approached Jiang on the jet-way ramp.
Jiang was carrying with him a carryon luggage bag, an over the shoulder computer bag and a coat. He also had checked in as luggage, two 20” X 20” X 20” boxes. He had the following electronic items:
Item
Location
1. Cellphone
In his jacket pocket on his person
2. An older wallet containing Chinese ID cards, Chinese currency, and a SIM card for Chinese cellphone service.
In his jacket pocket on his person
3. MSI personal laptop computer
Computer laptop bag on his person
4. SSD external hard drive
Computer laptop bag on his person
5. Memory stick
Computer laptop bag on his person
6. External hard drive
Carry-on luggage bag on his person
7. Old laptop
Checked Boxes
8. Seagate hard drive
Checked Boxes
9. 2008 Nano iPod
Unknown location Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 10 of 19 PageID# 166
11
At around 12:30 pm on March 16, 2013, as Jiang was about to board the United flight to China, he was approached by two or three DHS agents who informed him that they wanted to ask him some questions. Jiang consented. Initially he was asked in English, whether he had applied for a green card in 2002. He stated that he had originally entered the United States in 2007. The jet-way encounter lasted approximately 10 minutes. During this time, he was asked if he had a laptop with him. He responded in the affirmative. He also told the agents that he had with him a SSD hard drive. Those agents then took his computer bag and carry on. They exited the jet-way through the door at the end of the jet-way with Jiang and descended to the tarmac. They escorted Jiang to a Suburban vehicle waiting on the tarmac and wanted to place Jiang in handcuffs. Jiang continued to cooperate with the agents but asked not to be handcuffed and they complied. During the walk to the vehicle, one of the agents asked Jiang whether he had any electronics with him. These questions were being posed in English. Jiang told them he had a memory stick, an external hard drive, and gave them his cell phone.
After approximately 15 minutes on the tarmac, Jiang was placed in the Suburban with five government agents. They told him they were taking him to an immigration office for interviewing. During the 10-minute drive to that location, one of the agents looked through Jiang’s cell phone. The phone is programmed in Chinese and Jiang offered to convert the language setting to English. When they arrived to the office, prior to being interviewed, Jiang observed an agent with a screw driver and his laptop and external hard drive. Access to his laptop was password protected and Jiang provided the password. At some point, Jiang asked if he was going to miss his flight and they told him it was likely. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 11 of 19 PageID# 167
12
After approximately 15 minutes in this office, Jiang was taken to an interview room. After 15 minutes in the interview room, two FBI agents came in and interviewed Jiang for approximately an hour in English. After approximately an hour, one of the agents indicated that he spoke Chinese and if Jiang preferred they could continue the interview in Chinese. From that point on, the interview continued in both languages. The agent reported on several occasions that his Chinese was even worse than Jiang’s English.
At some point Jiang was escorted to the restroom and observed the boxes he had checked as luggage in the hallway. During the interview the Chinese agent asked him if he had any sensitive material on his equipment and Jiang said no. The agents asked him numerous times what electronic media he had with him. By this time Jiang was well aware that the agents were in possession of all his carry on and checked luggage.
The detention of Jiang at the border had far exceeded a routine customs search and inspection. Clearly the original intention of the questioning and inspection was to determine whether Jiang was carrying any contraband out of the country. The questioning of Jiang by DHS and FBI agents had become a custodial interrogation far exceeding the powers of either agency because there was no evidence that he was smuggling any contraband. The agents were unable to find or prove that any contraband existed and therefore continued a prolonged interview in violation of his rights in an attempt to prompt him to make false statements materially related to their investigation. The interview lasted approximately five hours before Jiang was read his Miranda Rights and placed under arrest. Throughout the interview period, Jiang was cooperative with the agents.
After being taken into custody, he was handcuffed and transported to the Norfolk City Jail where he was booked at approximately 11:00 pm. He was held there for the remaining of the
Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 12 of 19 PageID# 168
13
weekend. On Monday, March 18, as previously stated, a criminal complaint was presented to a Magistrate Judge. Early that morning, before taking Jiang to to a judicial officer forthwith, in accordance with Federal Rule Criminal Procedure Rule 5, he was taken to the FBI for processing. At that time, approximately 44 hours after being seized by agents, he was asked whether he would consent to a search of his residence. Again Jiang cooperated with investigators and gave his consent. His apartment was searched that day.
III. Argument
Jiang supports the conclusions contained in the Released Order of March 29, 2013 by Magistrate Judge Leonard. In rebuttal of the government’s objection to the Release Order, Jiang presents the following arguments in the order that the government presented them:
A. History and Characteristics of the Person
The government’s argument is essentially that because Jiang was returning to China at the time he was arrested, he will attempt to try and return home if he is released. The problem with this argument is that when Jiang was returning home on March 16, 2013, he was complying with United States law to leave before his visa expired and under no restrictions by any entity to stay. Currently, Jiang is obligated to stay and obey the Judge’s orders, and he desires to clear his name of all formal and informal accusations against him.
Furthermore, the government asserts that Jiang was fleeing the country to avoid “possible arrest for taking his NASA laptop” to China. This argument has no merit. Jiang was informed by NASA on December 19, 2012, that his taking of a government computer to China violated the use agreement for the computer, even though he had asked for permission to do so. If fear of arrest for this security violation was the motive for his “flight” why would he wait three months to leave? In fact, as described in the Statement of Fact, Jiang made over 100 attempts to secure Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 13 of 19 PageID# 169
14
employment and remain in the United States. His resume and applications are stored in the personal computer seized by the government during the “border search.” Having been unsuccessful in securing employment, and facing the upcoming expiration of his visa, combined with the news coverage of Congressional Public Hearings and Press Releases by congressmen accusing him of espionage made remaining in the United States an impossible option for Jiang.
Jiang is a well-respected scientist and a valued team member at ODU, NIA and NASA. Jiang’s mother is currently staying in Norfolk, Virginia. He has lived in the Norfolk area since his arrival for Ph.D. studies in 2007. He has work colleagues and associates who support him. He has no history related to drug or alcohol abuse, no criminal history, and no record of failures to appear. Jiang has the financial resources to abide by the conditions set by the Court pending trial.
B. Nature and Circumstances of the Offense
The government claims that the false statements in this case “are particularly noteworthy for their effect on an important investigation of data integrity at NASA.” This argument has no merit. In fact, the government investigation of data integrity at NASA was in no way compromised by what Jiang did or did not report about his belongings. The border search entitled the government to search everything in Jiang’s possession regardless of his statements. The government did in fact search all of Jiang’s belongings. The only reason his statements are important is because the government did not have probable cause or legal authority to detain Jiang for any ITAR or Arms Export Control crimes, and therefore needed some other reason to detain him and conduct an investigation.
Moreover, the government argues that Jiang’s graduation from UETSC in 2007 makes him suspicious and subject to “special examination of any export of information” for possible
Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 14 of 19 PageID# 170
15
involvement with the Chinese government’s weapon programs. According to this argument, every UETSC exchange student, graduate student or faculty member that shares research with their counterparts in partner universities, as well as scientists working in UETSC joint laboratories with United States firms should be subjected to the same special scrutiny and detained when traveling back and forth to China. Furthermore, the government has not produced a speck of evidence that Jiang has maintained any association with that university or disseminated any sensitive material.
The government claims that Jiang’s proffer regarding NASA IG’s testimony to Congress was “inaccurate and flat wrong.” They claim that the IG never stated that Jiang’s government owned computer/hard drive did not contain any sensitive, secret or classified information. In fact, Jiang maintains that IG Martin’s testimony on March 13, 2013 explicitly denied three congressmen’s accusations of espionage by Jiang stating that “[A]nd in fact, the people closest to the ground, the people charged with espionage cases within the NASA structure – there is a counter-intelligence – they don’t believe it’s in that. My understanding is that they don’t believe it’s an espionage case. They believe this is most appropriately – has been most appropriately handled as a security matter, which is why the Office of Security is the group that did the investigation.” See Statement of Facts above.
Counsel knows that NASA IT Network Security has examined Jiang’s NASA laptop and hard drive and found no ITAR violations. Counsel awaits this report in discovery.5
As stated earlier, Jiang’s work at NASA did not involve any sensitive, secret, classified or sensitive but unclassified material or for that matter any materials that had received national
5 An agreed Discovery Order was signed on March 28, 2013. Counsel has yet to receive any discovery in this matter. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 15 of 19 PageID# 171
16
security classification. His work involved fundamental research of patented technology in the public domain which had been made public in NASA’s own website since 1995.
According to the affidavit in support of the criminal complaint, the FBI opened their investigation of the defendant on March 13, 2013. However, in its memo for its support for revocation at page 9, the government contends that an anonymous NASA official had notified the FBI in November and December of 2012 about a potential security violation by Jiang. The government points out that the Magistrate Judge Leonard apparently credited defense counsel’s false assertions that NASA had not reported the offense to the FBI when rendering his decision. During the defense proffer, counsel relied on the sworn statement by the FBI agent that their investigation was opened on March 13, 2013. This was consistent with Congressman Wolf’s public statements about his March 7th letter to the United States Attorney and Director of the FBI requesting them to open an investigation.6 Moreover, counsel remains unaware that at any time, NASA has “officially” reported a potential security violation or requested an FBI investigation of such. Additionally, if such a report or request was ever made, one wonders why, if the FBI gave any credence to that allegation, the investigation was not opened until three months later.
C. The Weight of the Evidence
In Magistrate Judge Leonard’s Release Order, the Weight of the Evidence is neutral and favors neither party. The prolonged questioning of Jiang lasted five hours by multiple agents under what would be intimidating conditions for any person, and particularly so for a foreigner,. The evidence is that Jiang complied, to the best of his ability and understanding, with the requests of the agents. He knew that he had missed his plane; he knew that the agents were in possession of his checked and carry-on luggage; he knew that his hardware was being examined.
6 The Hon. Frank R. Wolf , Press Conference on Bo Jiang Arrest, March 18, 2013, p 2. Defendant Exhibit # 2. Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 16 of 19 PageID# 172
17
In every possible way, Jiang demonstrated a desire to cooperate and provide access to all that he had. Even 44 hours after being seized, Jiang continued to cooperate and gave permission for agents to search his apartment. Jiang was not attempting to conceal anything because he had nothing to conceal. The most likely explanation for any discrepancies in his reporting of what electronic equipment he was “carrying” should be attributed to a language barrier, which was exacerbated by the nerve wracking circumstances.
The government cites numerous reasons why this cannot be true. Firstly, that Jiang was a teaching assistant. In fact, Jiang was only “a grader” as stated in his resume. Secondly, that Jiang gave oral presentations. Jiang acknowledges that he gave three oral presentations on esoteric subject matters for which he practiced in advance for over 30 days. He continued to be most concerned about his question and answer period for fear that he would not understand the questions or be able to provide answers in English. Thirdly, Jiang co-authored papers. According to Jiang’s associates these papers required substantial editing to correct Jiang’s writing. As noted by the government, all of these papers were co-authored and not produced by Jiang alone.
Lastly, the government asserts that the language barrier could not have been an issue during the interrogation because Jiang was not being asked “to give a detailed critique of James Joyce’s Ulysses; instead he was asked to answer a simple question about the very computer items with which he worked as an expert every day.” Did it take the government five hours to ask the one simple question “What electronic equipment are you carrying?” Or did they in fact ask an endless array of related questions over and over until Dr. Jiang could not be sure he was answering correctly what they were asking of him? It is disingenuous for the government to suggest that it took FBI and DHS agents five hours of interrogation and examination of Jiang’s luggage to conclude that he was being less than candid regarding the electronic equipment that Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 17 of 19 PageID# 173
18
he possessed. This prolonged interrogation had but one purpose – to achieve what law enforcement had not previously achieved because they lacked probable cause or legal authority to search and/or arrest Jiang. Even so, the government has only charged Jiang with a single count of making false statements, a Class D Felony.
As presented in the Bond Report by Pre-Trial Service, Dr. Tao Huang, a lawful permanent resident of the United States, who resides at the same address as Jiang is a suitable third party custodian. His resume is included as an attachment. Defendant Exhibit 3. The fact that Dr. Huang is currently unemployed in no way disqualifies him as a third party custodian but makes him more available for supervision.
For the foregoing reasons, Jiang respectfully submits that after considering the information presented in this memorandum, the proffer presented to Magistrate Judge Leonard and his Order, the Pre-Trial Services report and recommendation combined with his ability to meet the conditions set for his release that the Court enters an Order allowing for the release of Dr. Jiang pending trial.
Respectfully submitted,
BO JIANG
DEFENDANT
By: ________/s/____________ Fernando Groene
Fernando Groene, P.C.
Virginia State Bar No. 24028
P.O. Box 2152
Williamsburg, Virginia 23185
Phone (757) 645-6388
Fax (1) (757) 828-5528
Email: groenelaw@yahoo.com Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 18 of 19 PageID# 174
19
CERTIFICATE OF SERVICE
I hereby certify that on April 7, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the counsel of record.
Lisa R. McKeel
Assistant United States Attorney
Fountain Plaza Three, Suite 300
721 Lakefront Commons
Newport News, VA 23606
757.591.4000
757.591.0866
Lisa.McKeel@usdoj.gov
Gordon Kromberg
Assistant United States Attorney
2100 Jamison Avenue
Alexandria, Virginia 22314
703.299.3700
703.299.3981
Gordon.kromberg@usdoj.gov
________/s/ _________________________
Fernando Groene
Fernando Groene, P.C.
Virginia State Bar No. 24028
P.O. Box 2152
Williamsburg, Virginia 23185
Phone (757) 645-6388
Fax (757) 345-3410
groenelaw@yahoo.com Case 4:13-cr-00034-RBS-DEM Document 33 Filed 04/07/13 Page 19 of 19 PageID# 175 |
-
总评分: 寄托币 + 20
查看全部投币
|
GO
楼主: iq28
发表于 2013-4-4 13:18:45
发表于 2013-4-4 14:43:26
发表于 2013-4-8 23:18:44
转发
