In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3013
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
HANJUAN JIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 192 — Rubén Castillo, Chief Judge.
____________________
ARGUED SEPTEMBER 9, 2013 — DECIDED SEPTEMBER 26, 2013
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The defendant was charged with
theft of trade secrets and economic espionage, both being
offenses under the Economic Espionage Act. See 18 U.S.C.
§§ 1831, 1832. A bench trial resulted in her conviction of theft
of trade secrets but acquittal of economic espionage. The
judge imposed a 48‐month prison sentence. Her appeal chal‐
lenges both her conviction and her sentence.
2 No. 12‐3013
The defendant, a naturalized American citizen of Chinese
origin who has a bachelor’s degree in physics from a Chi‐
nese university and master’s degrees in both physics and
computer science from American universities, was em‐
ployed by Motorola as a software engineer from 1998 to 2007
at the company’s global headquarters in a Chicago suburb.
Her duties primarily involved a cellular telecommunications
system manufactured and sold by Motorola called iDEN, an
acronym for Integrated Digital Enhanced Network.
She spent a protracted period in China in 2006 and 2007
while on a year‐long medical leave from Motorola, and
while there sought a job with a Chinese company called Sun
Kaisens, which develops telecommunications technology for
the Chinese armed forces. Shortly after returning to the
United States in February 2007 she bought a one‐way ticket
to China on a plane scheduled to leave Chicago a few days
later. In the interval before her scheduled departure she
downloaded thousands of internal Motorola documents, all
stamped proprietary, disclosing details of the iDEN technol‐
ogy. The government based its prosecution on three of these
documents.
As her purchase of a one‐way ticket to China indicated,
along with the large amount of currency ($31,000) that she
was carrying when stopped by Customs agents at the air‐
port, she intended to live in China and work there for Sun
Kaisens. Asked by Customs and later the FBI what she was
doing with thousands of Motorola documents relating to the
iDEN system, she said she needed them in order to refresh
her knowledge of it.
The documents contained trade secrets in the ordinary
sense. But the statute that she was convicted of violating de‐
No. 12‐3013 3
fines the term “trade secret” elaborately, and one of the ele‐
ments in the definition—an element she challenges—is that
“the information [claimed to be a trade secret] derives inde‐
pendent economic value, actual or potential, from not being
generally known to … the public.” 18 U.S.C. § 1839(3)(B).
The statute also defines “theft of trade secret” elaborately:
the defendant must (so far as relates to this case) steal the
trade secret for the purpose of conferring an “economic
benefit [on] anyone other than the owner thereof, … intend‐
ing or knowing that the offense will injure any owner of that
trade secret.” 18 U.S.C. § 1832(a). The defendant argues that
her conduct satisfied neither requirement—that what she
stole was not a trade secret and she neither intended nor
knew that the theft would harm Motorola.
iDEN is a mobile telecommunications system developed
by Motorola in the early 1990s. It is on its way out, sup‐
planted by more advanced systems. But in 2007, when the
theft occurred, Motorola still had many customers for
iDEN—indeed about 20 million, spread over 22 countries
including China.
iDEN’s most notable feature is “push to talk,” which al‐
lows handsets to operate as walkie‐talkies but provides con‐
ventional cellular phone capabilities as well, such as texting
and Internet access. Push‐to‐talk made iDEN systems attrac‐
tive to law enforcement, emergency responders, taxicab dis‐
patchers, and the like; the Israeli and South Korean armed
forces were among iDEN’s customers. Other manufacturers
besides Motorola offered push‐to‐talk capability, but iDEN
was a complete end‐to‐end system that one witness testified
had the fastest push‐to‐talk capability. Because the technol‐
ogy was treated by Motorola as a trade secret, iDEN could
4 No. 12‐3013
be bought from and serviced only by Motorola or its licen‐
sees.
The defendant argues that because iDEN was rapidly los‐
ing its commercial cachet, the theft could not have harmed
Motorola; no one would have tried to sell copies of iDEN, as
keeping the iDEN technology secret conferred no economic
benefit on Motorola. But as an engineer intimately familiar
with iDEN, the defendant had to know that had she been
able to fly to China with the iDEN documents in her lug‐
gage, Motorola, as soon as it discovered the theft, would
have had to warn its customers of the risk that privacy of
communications over the iDEN network had been or would
be compromised. And it would have had to take counter‐
measures at some expense to itself. Moreover, once it
learned that the defendant was going to work for a company
that provides telecommunications services to the Chinese
armed forces, it would have had to assume that there was a
good chance that the defendant would show the stolen doc‐
uments to the company, which in turn might use them to
help the Chinese government hack into iDEN networks. The
danger might be illusory, but Motorola could not assume
that.
The defendant must also have known that Sun Kaisens or
some other Chinese company would discover in those thou‐
sands of documents that she had stolen information that
would make it easier to duplicate the iDEN system and thus
create new iDEN networks, to compete with Motorola’s
network. Competitors could peel off some of those 20 mil‐
lion Motorola customers by offering a usable substitute at a
lower price, being able to offer a lower price, yet still make a
No. 12‐3013 5
profit, by virtue of not having incurred costs of research and
development.
Motorola had taken elaborate precautions, albeit skill‐
fully circumvented by the defendant, to keep the iDEN tech‐
nology secret. It wouldn’t have incurred the cost of those
precautions had it not feared adverse consequences if the
technology became public. The secrecy of the technology
gave Motorola a monopoly. Maybe not a terribly valuable
monopoly, in view of technological advances that would
soon make iDEN obsolete, but a temporary monopoly gen‐
erating supracompetitive profits that competition, enabled
by the loss of secrecy, would erode.
The defendant denies any intention of showing any of
the thousands of documents about iDEN that she stole to
anyone in China (or elsewhere); they were just study aids.
And the judge made no contrary finding. But what she was
studying—what she was refreshing her knowledge of—was
iDEN. In China she would be a walking repository of
knowledge about iDEN that she could communicate to any
company or government agency interested in hacking or
duplicating iDEN. Could and would, because it would en‐
hance her career prospects; what other motive could she
have had for refreshing her knowledge of iDEN? So had she
not been stopped from boarding the plane to China, she
would have succeeded in conferring an economic benefit on
herself and Sun Kaisens, and quite possibly on the Chinese
military as well.
The government doesn’t have to prove that the owner of
the secret actually lost money as a result of the theft. For re‐
member that the “independent economic value” attributable
to the information’s remaining secret need only be “poten‐
6 No. 12‐3013
tial,” as distinct from “actual.” 18 U.S.C. § 1839(3)(B). We
held in United States v. Lange, 312 F.3d 263 (7th Cir. 2002),
that information about the composition of aircraft brake as‐
semblies was a trade secret even though that information
might have been obtained (entirely lawfully) by reverse en‐
gineering of the brakes. For “completed assemblies must be
exhaustively tested to demonstrate, to the FAAʹs satisfaction,
that all requirements have been met; only then does the FAA
certify the part for sale … . It takes RAPCO [the victim of the
theft of trade secrets] a year or two to design, and obtain ap‐
proval for, a complex part … . But the process of experiment‐
ing and testing can be avoided if the manufacturer demon‐
strates that its parts are identical (in composition and manu‐
facturing processes) to parts that have already been certified.
What Lange, a disgruntled former employee, offered for sale
was all the information required to obtain certification of
several components as identical to parts for which RAPCO
held certification.” Id. at 265.
United States v. Chung, 659 F.3d 815, 827 (9th Cir. 2011), is
similar. It involved the theft of Boeing documents that de‐
scribed a phased‐array antenna system for the space shuttle.
Boeing had no competitors for the project and thus would
not have experienced an immediate loss of profits from the
disclosure of information in those documents. But the court
found a theft of trade secrets nonetheless, because the infor‐
mation revealed how Boeing solves problems, something
that competitors in other markets in which Boeing operates
might want to know.
Coming closer to home, suppose a company in New Or‐
leans had stolen the iDEN technology and was about to sell
its first subscription to its brand‐new iDEN network when
No. 12‐3013 7
Hurricane Katrina destroyed the company. Would that mean
that the company had stolen something that had no eco‐
nomic value? No; for what it stole had economic value
though for extraneous reasons the value couldn’t be
monetized. The theft in the present case, as in our hypotheti‐
cal case, might have injured Motorola by revealing that it
couldn’t keep secrets or prevent rivals from stealing its tech‐
nology.
So there was adequate evidence of the defendant’s guilt,
and we turn to her challenge to the sentence.
The district judge acquitted her of the other crime that
she was charged with—economic espionage, which required
the government to prove that she had stolen the trade secrets
intending to, or knowing that the theft would, benefit a for‐
eign government, instrumentality, or agent. 18 U.S.C.
§ 1831(a). He thought her guilty of the offense, but not that it
had been proved beyond a reasonable doubt. Nevertheless
at sentencing he added two levels to her base offense level,
pursuant to section 2B1.1(b)(5) of the sentencing guidelines,
which requires such an increase “if the offense involved
misappropriation of a trade secret and the defendant knew
or intended that the offense would benefit a foreign gov‐
ernment, foreign instrumentality, or foreign agent.” A judge
need determine guilt of an offense only by a preponderance
of the evidence in order to be allowed to factor that determi‐
nation into his decision regarding the appropriate sentence
for the offense of which the defendant has been convicted.
United States v. O’Brien, 130 S. Ct. 2169, 2174 (2010); United
States v. Horne, 474 F.3d 1004, 1006–07 (7th Cir. 2007).
The addition of the two levels brought the defendant’s
total offense level to 28, making her guidelines sentencing
8 No. 12‐3013
range 78 to 97 months. The sentence the judge gave her—48
months—was much lower. Given her egregious conduct,
which included repeatedly lying to federal agents (for which
she could have been prosecuted but was not), she was fortu‐
nate to be the recipient of discretionary sentencing lenity
based on her ill health and inability to join her family, now
in China. The judge gave her a further, surprising break by
reducing her offense level (by two levels) for acceptance of
responsibility, U.S.S.G. § 3E1.1(a), despite her having
pleaded not guilty and gone to trial.
AFFIRMED.