FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50074
Plaintiff-Appellee, D.C. No.
v. 8:08-cr-00024-
DONGFAN “GREG” CHUNG, CJC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
February 17, 2011—Pasadena, California
Filed September 26, 2011
Before: Alfred T. Goodwin, Andrew J. Kleinfeld, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
18267
18272 UNITED STATES v. CHUNG
COUNSEL
John D. Cline, Law Office of John D. Cline, San Francisco,
California, for the defendant-appellant.
Gregory W. Staples, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Dongfan “Greg” Chung, a former Boeing engi-
neer who gave technological information to China, appeals
UNITED STATES v. CHUNG 18273
his convictions on six counts of violating the Economic Espi-
onage Act of 1996 (“EEA”), 18 U.S.C. § 1831(a)(1), (3); on
one count of conspiring to violate the EEA, 18 U.S.C. § 371;
on one count of acting as an unregistered foreign agent, 18
U.S.C. § 951; and on one count of making a false statement
to federal agents, 18 U.S.C. § 1001. Defendant argues primar-
ily that his convictions were not supported by sufficient evi-
dence.
Alternatively, Defendant contends that he is entitled to a
new trial because the government failed to turn over exculpa-
tory information in violation of its duty under Brady v. Mary-
land, 373 U.S. 83 (1963), and because the district court made
several erroneous evidentiary rulings. Finally, he challenges
the district court’s calculation of his offense level under the
United States Sentencing Guidelines.
For the reasons that follow, we affirm.
BACKGROUND
A. Investigation and Conviction
Defendant was born in China in 1936 and became a natu-
ralized citizen of the United States in 1972. He began working
as a civil engineer at Boeing in 1964. With the exception of
a few years spent at McDonnell Douglas, Defendant worked
for either Rockwell or Boeing1 until September 2002, when
his division relocated and he retired. During his employment
with Rockwell and Boeing, Defendant worked mainly as a
stress analyst on the forward fuselage section of the space
shuttle. After retiring, Defendant returned to Boeing as a con-
tractor in 2003 to help evaluate the crash of the space shuttle
Columbia. He remained at Boeing until September 11, 2006,
when federal agents searched his home and discovered a trove
of Boeing technical documents stored beneath the house.
1
Boeing acquired Rockwell’s space division in 1996.
18274 UNITED STATES v. CHUNG
Federal agents first suspected that Defendant was spying
for China during their investigation of Chi Mak, another engi-
neer who worked for a naval defense contractor.2 In October
2005, agents searched Chi Mak’s residence and found Defen-
dant’s contact information in several of Chi Mak’s address
books. During a second search of Chi Mak’s home in June
2006, agents found a letter dated May 2, 1987, addressed to
Defendant from Gu Weihao, who was a senior official with
the China Aviation Industry Corporation, a Chinese govern-
ment ministry. In that letter, Gu Weihao asked Defendant to
provide information about airplanes and the space shuttle and
thanked Defendant for previously providing unspecified infor-
mation to China. The federal agents also found what they con-
sidered to be a “tasking list” in Chi Mak’s home. Although
the list itself was not addressed to anyone in particular, it
requested information about aviation technologies. Because
Chi Mak did not have access to aviation technology, the Fed-
eral Bureau of Investigation (“FBI”) suspected that the list
was meant for Defendant.
Following those discoveries, federal agents began to con-
duct surveillance and trash searches at Defendant’s home. In
August and September 2006, agents discovered that Defen-
dant was disposing of Boeing technical documents by hiding
them between the pages of Chinese-language newspapers,
which he then left out for trash collection.
On September 11, 2006, agents interviewed Defendant and,
with Defendant’s consent, searched his home. They discov-
ered that Defendant possessed more than 300,000 pages of
Boeing and Rockwell documents, many of which related to
the space shuttle, Delta IV Rocket, F-15 Fighter, B-52
Bomber, and Chinook Helicopter. Approximately 250,000
pages of those documents were kept in binders in an unfin-
ished storage area beneath Defendant’s house. Agents also
2
In 2007, Chi Mak was convicted of, among other things, acting as an
unregistered foreign agent.
UNITED STATES v. CHUNG 18275
recovered business cards, letters, briefings, documents related
to travel, numbered lists of technical information related to
aerospace or the space shuttle program, and Defendant’s jour-
nals.
A grand jury indicted Defendant on February 6, 2008. After
a bench trial, he was convicted on count 1 for conspiracy to
commit economic espionage, on counts 2 through 7 for eco-
nomic espionage, on count 10 for acting as an unregistered
foreign agent, and on count 14 for making a false statement
to federal agents.3 The district court then sentenced Defendant
to 188 months’ imprisonment and three years of supervised
release. Defendant timely appeals.
B. Evidence Presented at Trial
During the trial, the government presented many of the
documents retrieved from Defendant’s home. Much of the
evidence, however, relates to activities and communications
that predate the limitations period for the alleged crimes. The
limitations period for all of the charged offenses ran from
February 6, 2003, to February 6, 2008.4 We therefore will
divide our discussion of the evidence chronologically.
1. Activities and Correspondence Predating the
Limitations Period
The government introduced a letter written in 1979 by
Defendant to Professor Gu (aka Ku Chen Lung) of the Harbin
Institute of Technology in China. In that letter, Defendant
states that he sent Professor Gu some graduate engineering
course materials, a book, and some magazine articles. In clos-
ing, Defendant expressed his wish to contribute “to China’s
Four Modernizations.” Professor Gu sent a letter to Defendant
3
The district court granted the government’s motions to dismiss counts
8, 9, 12, 13, and 15. Defendant was acquitted on count 11.
4
See 18 U.S.C. § 3282 (providing a 5-year statute of limitations).
18276 UNITED STATES v. CHUNG
thanking him for the materials. There is no evidence in the
record of any further communication between Defendant and
Professor Gu.
Also in the record is a series of letters, exchanged in 1985,
between Defendant and Chen Qinan, who was project man-
ager of the China National Aero Technology Import/Export
Corporation. Those letters largely concern what information
Defendant should supply while visiting China for a “technical
exchange.” Chen Qinan sought information related to the
fatigue life and structural design of aircraft and armed heli-
copters. Defendant, however, offered to provide information
about the space shuttle as well, even though he acknowledged
that “[i]nformation regarding the space shuttle is classified as
secret.” He further explained to Chen Qinan that he had only
partial information regarding the helicopter’s structural design
because “that information is controlled by the Department of
Defense.” In another letter, Defendant expressed an interest in
visiting several Chinese aircraft manufacturers and noted his
desire to “contribute [his] expertise.” Agent Kevin Moberly,
the lead case agent assigned to Defendant’s case, testified that
agents found, in Defendant’s home, documents and briefings
on laminate slides that were responsive to Chen Qinan’s
requests.
The government also presented a tasking list from the Nan-
chang Aircraft Company, a production factory of the Chinese
Ministry of Aviation. Defendant received the list on July 14,
1985, during his visit to the Nanchang plant. The list requests
information concerning methods for determining the fatigue
life of aircraft and helicopters, including information regard-
ing United States military specifications. Again, Agent
Moberly testified that technical documents responsive to the
tasking list were found in Defendant’s home.
The record also contains an undated letter from Defendant
to Chief Engineer Feng of the Nanchang Aircraft Company.
In that letter, Defendant stated that he had “attached the
UNITED STATES v. CHUNG 18277
answers for the questions that were not answered when I was
in Nan[c]hang.” He also referred to a list of books that he had
collected, and he stated that Zhao Zhen Lan, the San Fran-
cisco Education Consul, would arrange for their delivery. In
another letter, Defendant referred to 27 manuals that he had
sent, and he attached a list cataloguing 24 structure manuals
developed by Rockwell’s B-1 Division.
The government presented several letters between Defen-
dant and Gu Weihao,5 Defendant’s purported “handler.” All
of those letters, however, predate the limitations period. The
first letter from Gu Weihao to Defendant is dated March 25,
1986. After reporting that he had arrived safely in Beijing
after his visit with Defendant in Los Angeles, Gu Weihao
stated that he now was engaged in research on damage toler-
ance and expressed his hope that Defendant could “often pro-
vide [his] advice in this area.”
The second letter from Gu Weihao to Defendant, dated
May 2, 1987, was found in Chi Mak’s home. In that letter, Gu
Weihao wrote that he had asked Chi Mak to visit Defendant
and to deliver a small present. Gu Weihao then requested
Defendant’s assistance on some “difficult technical issues”
concerning the design for “trunkline aircraft (150 seats)” and
the space shuttle. Specifically, he was interested in obtaining
quality control information. He expressed his preference to
consult with Defendant in person and suggested a meeting in
Guangzhou “to discuss with [him] in a small setting, which is
very safe.” The letter further reads, in pertinent part:
We’ll be responsible for all the expenses of your
international travel and stay in Guangzhou. You can
discuss the time and route of your trip to China with
Mr. Mak in person. . . .
5
Professor Gu and Gu Weihao are two different persons.
18278 UNITED STATES v. CHUNG
You may use “traveling to Hong Kong” or “visit-
ing relatives in China” as reasons for traveling
abroad, or we can ask the “Guangzhou Fine Arts
Center” or the “Guangzhou Academy of Fine Arts”
to extend an invitation to Mrs. Chung and have Mr.
Chung, in the name of accompanying his wife, travel
abroad together with her. To sum up, if you have any
suggestions or if you have anything that I can help
you [with] here, you can have Mr. Mak convey it to
me. Normally, if you have any information, you can
also pass it on to me through Mr. Mak. This channel
is much safer than others.
It is your honor and China’s fortune that you are
able to realize your wish of dedicating yourselves to
the service of your country.
In a third letter, dated April 12, 1988, Gu Weihao informed
Defendant that China would soon create the Ministry of Aero-
nautics and Astronautics Industry. He then wrote:
[W]e are yearning for the enthusiasm and the sincere
help from the foreign countries. I profoundly under-
stand what you have in your mind. Therefore, I hope
that you will introduce advanced technologies and
provide information on advanced technologies. Our
perspective will be greatly expanded under the scope
of the new ministry. There is no need to limit the
scope that we proposed while we were in the United
States. Please provide at any time. It is faster and
safer by forwarding through Mr. Mak.
In his next letter to Defendant, dated December 12, 1988,
Gu Weihao made no requests for information but noted that
he had yet to receive a reply to the letters he had written at
the beginning of the year. He also sent his regards to Mr. and
Mrs. Mak because they had not written him for some time.
Defendant eventually wrote back and apologized for taking so
UNITED STATES v. CHUNG 18279
long to reply. Defendant did not refer to Gu Weihao’s previ-
ous requests for information.
In a letter dated July 5, 1992, Gu Weihao reported that he
had fully retired that year.
Although Defendant’s journal entries show that he subse-
quently wrote to Gu Weihao on January 4, 1996, on May 12,
1997, and on December 18, 2001, the content of those letters
is unknown. Defendant’s journals also document that he
hosted Gu Weihao in the United States in 1990, 1991, and
1992. The journal entries, however, merely record when
Defendant picked up and dropped off Gu Weihao at the air-
port, where they ate, and what attractions they visited. One
entry notes that Chi Mak and his wife spent an evening with
Defendant and Gu Weihao.6
Defendant’s journals further document that, in April 2001,
Defendant traveled to China and gave presentations on the
space shuttle. Defendant again traveled to China in September
2002 to attend “National Day” celebrations, but his journal
entries record only tourist activities while on that trip.
Immediately preceding Defendant’s visit to China in 2002,
however, he downloaded more than 500 space shuttle specifi-
cations from the Shuttle Drawing System (“SDS”), a
restricted Boeing database. Chi Mak’s name, plus his work
and home phone numbers, were written on one of the SDS
documents. Defendant used correction fluid to cover the user
name, the date and time stamp, or other information on more
than a third of the downloaded SDS documents. On one docu-
ment, he covered a warning that the document contained pro-
prietary information that could not be disclosed without
permission. In January 2003, Defendant created on his home
6
Defendant’s journal entries list additional social contacts with Chi
Mak. Specifically, Defendant recorded four social visits with Chi Mak in
1990, one in 1995, and one in 2002.
18280 UNITED STATES v. CHUNG
computer a file called “Specification.doc” that contained his
indexing system for the downloaded SDS documents.
2. Activities and Correspondence Within the Limitations
Period
Defendant recorded in his journal that he wrote to Gu Wei-
hao on February 10, 2003. The content of that letter is
unknown.
In early 2003, Defendant recorded in his journal that he
input and organized “spec material” on 21 separate occasions.
On March 27, 2003, Defendant wrote that he was “done with
organizing Spec. material and arranging in numerical orders.”
Defendant then created the file “Spec_Mod.doc” on his home
computer on March 28, 2003, in which he further organized
and modified the specification material. Between September
2003 and November 2003, Defendant downloaded additional
SDS specifications at Boeing. Both SDS files on his home
computer were last modified on December 15, 2003.
On December 27, 2003, Defendant traveled to China. There
is no direct evidence in the record that establishes what
Defendant did on that trip or whether he delivered SDS docu-
ments to anyone in China.
Most significantly, as discovered by federal agents on Sep-
tember 11, 2006, Defendant possessed approximately 300,000
pages of Boeing documents, including: (1) more than 700
SDS documents, one of which bears Chi Mak’s name and
telephone numbers; (2) documents related to the X-37 space
vehicle; (3) documents related to the thermal protection sys-
tem on the International Space Station; (4) documents related
to the F-15 Fighter; (5) documents related to the CH-46 and
CH-47 Chinook Helicopter; and (6) documents related to the
B-52 Bomber. Defendant told federal agents that he had taken
the documents home because he planned to write a book. He
also claimed that, although Boeing policy generally prohibited
UNITED STATES v. CHUNG 18281
taking home work documents, his supervisor, William Novak,
had given him permission to keep the documents.
The government identified six documents in Defendant’s
possession that allegedly contained trade secrets: four docu-
ments about a phased array antenna for the space shuttle and
two documents about the Delta IV Rocket.
As noted, the government presented evidence that, between
August 4, 2006, and September 1, 2006, federal agents dis-
covered more than 1,000 pages of Boeing documents hidden
between the pages of Chinese newspapers that Defendant had
placed in the trash. Defendant’s journals also record that,
between November 12, 2004, and August 5, 2006, he “[g]ot
rid of old newspaper,” on 27 separate occasions. Defendant
told agents that he had disposed of the documents in that fash-
ion because he did not want NASA documents flying around
the trash disposal area.
DISCUSSION
A. Sufficiency of the Evidence
Defendant challenges, for lack of sufficient evidence, his
convictions for acting as a foreign agent, violating the EEA,
conspiring to violate the EEA, and making a false statement
to federal agents. We review the sufficiency of the evidence
de novo to determine whether, “viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); United States v. Nevils, 598 F.3d 1158,
1163-64 (9th Cir. 2010) (en banc).
1. Acting as an Unregistered Foreign Agent
[1] Defendant was convicted of acting as an unregistered
foreign agent pursuant to 18 U.S.C. § 951(a), which provides
18282 UNITED STATES v. CHUNG
criminal liability for anyone “other than a diplomatic or con-
sular officer or attaché, [who] acts in the United States as an
agent of a foreign government without prior notification to the
Attorney General.” The statute defines “agent of a foreign
government” as “an individual who agrees to operate within
the United States subject to the direction or control of a for-
eign government or official.” Id. § 951(d). The government
therefore must prove that, after February 6, 2003, Defendant
acted pursuant to an agreement to operate subject to the direc-
tion or control of China. Thus, in addition to proving Defen-
dant’s intent, the government must also establish that a
Chinese official directed or controlled Defendant’s actions
during the limitations period.
[2] We conclude that, viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could
conclude beyond a reasonable doubt that Defendant still was
acting at the direction or control of Chinese officials during
the limitations period. Defendant’s relevant actions during the
limitations period that were proved by direct evidence
included: (1) downloading, inputting, and organizing SDS
specification materials; (2) traveling to China in 2003; (3)
writing a letter to Gu Weihao in 2003; (4) possessing a huge
library of Boeing’s and Rockwell’s proprietary information;
and (5) disposing of Boeing technical documents by hiding
them between the pages of newspapers, which he deposited in
the trash. Sufficient circumstantial evidence ties that conduct
to Chinese direction or control.
[3] There is, to begin, ample evidence that, in the mid- to
late-1980s, Defendant gathered and delivered technical infor-
mation regarding the structural design of aircraft in specific
response to requests from Chinese officials. Although a for-
eign official’s directions to an agent are not necessarily per-
petual in duration, here the trier of fact reasonably could find
that Defendant was still responding to those directions during
the limitations period. Gu Weihao was the Chinese official
who, in the 1980s, requested information from Defendant. In
UNITED STATES v. CHUNG 18283
1987, Gu Weihao wrote a letter to Defendant that fairly can
be read as passing Defendant on to Chi Mak as his new “han-
dler.” After Gu Weihao’s purported retirement, Defendant
continued to collect similar technical information and, it could
be inferred, conspired with Chi Mak to transfer this informa-
tion to China; Chi Mak was himself convicted of being an
unregistered foreign agent.
Moreover, Defendant began to download the SDS docu-
ments before traveling to China in 2002; after that trip to
China, he downloaded more documents and spent a great deal
more time indexing them in 2003. A rational trier of fact
could find that he performed this tedious task because some-
one in China wanted him to. Given his history and the nature
of the material, a rational fact-finder could disbelieve Defen-
dant’s assertion that he planned to write a book and could
instead conclude that his purpose was to assist his principal in
the course of his unregistered agency.
[4] In summary, a rational finder of fact could conclude
that Defendant was continuing to work for China under the
direction or control of Chinese officials. Accordingly, we
affirm Defendant’s conviction for acting as an unregistered
foreign agent.
2. Violations of the EEA
[5] Defendant was convicted of six counts of violating the
EEA. The EEA provides, in pertinent part:
Whoever, intending or knowing that the offense
will benefit any foreign government, foreign instru-
mentality, or foreign agent, knowingly—
....
(3) receives, buys, or possesses a trade secret,
knowing the same to have been stolen or appropri-
ated, obtained, or converted without authorization;
18284 UNITED STATES v. CHUNG
....
shall . . . be fined not more than $500,000 or impris-
oned not more than 15 years, or both.
18 U.S.C. § 1831(a)(3).
Of the 300,000 pages of Boeing documents that were found
in Defendant’s home, the government identified six that alleg-
edly contained trade secrets. Each document underlies a sepa-
rate EEA count in the indictment. Four of the documents
relate to a phased array antenna that Boeing developed for the
space shuttle. The other two documents describe technology
that Boeing developed for the Delta IV Rocket. Defendant
argues that the documents related to the phased array antenna
did not contain trade secrets. He further contends that the gov-
ernment failed to prove beyond a reasonable doubt that, dur-
ing the limitations period, he possessed any of the trade secret
documents with the intent to benefit China.
a. The Definition of “Trade Secret”
[6] We start with whether there was sufficient evidence
that the documents were trade secrets under the EEA. The
EEA defines “trade secret” as information that “the owner
thereof has taken reasonable measures to keep . . . secret,” and
that “derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable through proper means by, the public.” Id.
§ 1839(3). Thus, the government must prove three elements:
(1) that the information is actually secret because it is neither
known to, nor readily ascertainable by, the public; (2) that the
owner took reasonable measures to maintain that secrecy; and
(3) that independent economic value derived from that
secrecy.
Until now, this court has had no occasion to interpret the
EEA’s definition, and the case law in other circuits is sparse.
UNITED STATES v. CHUNG 18285
The EEA’s definition, however, is derived from the definition
that appears in the Uniform Trade Secrets Act (“UTSA”),7 a
model statute which permits civil actions for the misappropri-
ation of trade secrets. Thus, we consider instructive interpreta-
tions of state laws that adopted the UTSA definition without
substantial modification.
With regard to the element of actual secrecy, the comment
to section 1 of the UTSA explains that “information is readily
ascertainable if it is available in trade journals, reference
books, or published materials.” The EEA’s text, however,
deviates from the UTSA by identifying “the public,” as
opposed to “persons who can obtain economic value from
[the proprietary information’s] disclosure or use,” as the set
of parties who might know or readily ascertain the informa-
tion. There is some conflict between circuits as to whether
that deviation alters the “readily ascertainable” analysis. Com-
pare United States v. Lange, 312 F.3d 263, 267 (7th Cir.
2002) (interpreting “the public” as not necessarily meaning
the “general public,” but potentially “the economically rele-
vant public” (emphasis in original)), with United States v.
Hsu, 155 F.3d 189, 196 (3d Cir. 1998) (observing that “the
EEA alters the relevant party from whom proprietary informa-
tion must be kept confidential”). Because Defendant does not
7
The UTSA defines “trade secret” as
information, including a formula, pattern, compilation, program,
device, method, technique, or process, that:
(i) derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascer-
tainable by proper means by, other persons who can obtain eco-
nomic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the cir-
cumstances to maintain its secrecy.
Unif. Trade Secrets Act § 1(4) (amended 1985), 14 U.L.A. 438 (1990).
Many states have adopted the UTSA, but state laws often deviate from its
text.
18286 UNITED STATES v. CHUNG
contend that the secret information in this case was readily
ascertainable, we need not weigh in on this issue.
As for the second element, reasonable measures for main-
taining secrecy “have been held to include advising employ-
ees of the existence of a trade secret, limiting access to a trade
secret on [a] ‘need to know basis’, and controlling plant
access.” Unif. Trade Secrets Act § 1 cmt., 14 U.L.A. 438, 439
(1990); see Buffets, Inc. v. Klinke, 73 F.3d 965, 969 (9th Cir.
1996) (holding that, under Washington state law, job manuals
were not trade secrets because employees were allowed to
take them home and because “employees were advised of nei-
ther the manuals’ status as secrets, nor of security measures
that should be taken to prevent their being obtained by oth-
ers”). Security measures, such as locked rooms, security
guards, and document destruction methods, in addition to con-
fidentiality procedures, such as confidentiality agreements
and document labeling, are often considered reasonable mea-
sures. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991
F.2d 511, 521 (9th Cir. 1993) (interpreting California’s UTSA
and holding that the plaintiff had taken reasonable measures
to maintain the secrecy of its customer database by “requir-
[ing] its employees to sign confidentiality agreements respect-
ing its trade secrets”); Wyeth v. Natural Biologics, Inc., 395
F.3d 897, 899-900 (8th Cir. 2005) (holding that, under Minne-
sota’s UTSA, the plaintiff had implemented reasonable mea-
sures by limiting access to confidential information, training
employees, controlling documents, and obtaining oral and
written understandings of confidentiality); Rockwell Graphic
Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 178-80 (7th Cir.
1991) (considering both physical security measures and confi-
dentiality agreements).
With regard to the third element, whether the information
derives independent economic value from being kept secret,
courts most often consider the degree to which the secret
information confers a competitive advantage on its owner.
See, e.g., MAI Sys., 991 F.2d at 521 (holding that the plaintiff,
UNITED STATES v. CHUNG 18287
which serviced computers running MAI software, derived
economic value from the secrecy of its customer database
because the defendant, which offered the same technical ser-
vices, would be able to direct their sales efforts to customers
using MAI software); Trandes Corp. v. Guy F. Atkinson Co.,
996 F.2d 655, 663 (4th Cir. 1993) (finding that, “[a]rmed with
a copy of the [plaintiff’s proprietary] object code, an individ-
ual would have the means to offer much the same engineering
services as [the plaintiff]”). Some courts also have considered
the cost and effort necessary to develop the secret informa-
tion. See Beard Research, Inc. v. Kates, 8 A.3d 573, 594 (Del.
Ch. 2010) (finding economic value because “it took [the
plaintiff] hundreds of hours to get its catalog business up and
running” and because “a competitor could not have generated
a similar system without expending a comparable amount of
time and money”). In any event, the analysis is fact-intensive
and will vary from case to case.
b. Phased Array Antenna Documents
In the 1990s, NASA contemplated replacing the space shut-
tle’s dish antenna with a phased array antenna. Boeing com-
peted with other companies to supply the antenna. But Boeing
was the sole-source contractor at the time for integrating tech-
nologies, including the new antenna, into the shuttle. The pro-
posed communications upgrade required Boeing’s engineers
to determine the feasibility of installing the new antenna at the
existing antenna locations on the shuttle’s forward fuselage by
enlarging or adding an opening. Those potential structural
changes required conducting the appropriate stress analyses.
Additionally, engineers had to figure out how to dissipate the
heat generated by the new antenna—either by reducing the
number of “elements” used in the antenna or by installing an
active cooling system—so that the shuttle could reenter the
atmosphere safely. Ultimately, however, NASA opted not to
place a phased array antenna on the shuttle.
Defendant possessed four documents related to the phased
array antenna project. Two documents listed the tasks and
18288 UNITED STATES v. CHUNG
hours necessary to complete the integration project. Those
documents underlie counts 2 and 4 of the indictment. The
other two documents, which underlie counts 3 and 5, were
slide presentations about the communications upgrade.
Among the data contained in the slides was a list of the anten-
na’s specifications, including the proposed number of ele-
ments in the antenna.
[7] First, we look to whether the phased array antenna doc-
uments were secret and not readily ascertainable. The govern-
ment points out, and Defendant does not contest, that the
tasks-and-hours lists underlying counts 2 and 4 were never
made public. With regard to the slide presentations underlying
counts 3 and 5, Defendant correctly argues that the documents
contain information similar to that presented by Boeing engi-
neers at a NASA-sponsored conference that was attended by
Boeing’s competitors. But the portions of those documents
relating to the number of elements in the phased array antenna
were not disclosed at the conference. Therefore, sufficient
evidence supports the conclusion that all four phased array
antenna documents contained secret information. Moreover,
as we previously noted, Defendant does not contend that the
secret information in those four documents was readily ascer-
tainable.
[8] Next, we consider whether Boeing took reasonable
measures to maintain the four documents’ secrecy. Although
none of the documents was kept under lock and key, Boeing
implemented general physical security measures for its entire
plant. Security guards required employees to show identifica-
tion before entering the building, and Boeing reserved the
right to search all employees’ belongings and cars. Boeing
also held training sessions instructing employees not to share
documents with outside parties, and it required employees,
including Defendant, to sign confidentiality agreements. Fur-
ther, two of the four phased array documents (underlying
counts 3 and 5) were marked as proprietary. Thus, there was
sufficient evidence to support the conclusion that Boeing took
UNITED STATES v. CHUNG 18289
reasonable measures to keep all four phased array antenna
documents secret.
[9] Finally, Boeing derived some economic value from
keeping the phased antenna array documents secret. The doc-
uments underlying counts 2 and 4 listed the tasks and hours
necessary for the antenna’s integration into the space shuttle.
Boeing engineer Emad Farag testified that the estimates of
hours, tied to the list of tasks, would tip off competitors to
more than just the costs associated with this specific project.
Although Boeing had no competitors for the integration proj-
ect itself, Farag suggested that a competing company might
bid against Boeing for integration work when the sole-source
contract ran out. Moreover, the documents would show a
competitor how Boeing operates, “not just related to the inte-
gration . . . , but it has implication for everything else we’re
working on.” The documents, he testified, would give a com-
petitor who studies them the advantage of knowing how Boe-
ing accomplishes its work, including engineering and
processing, and would reveal Boeing’s relative costs for per-
forming each type of work. A reasonable inference is that the
information could assist a competitor in understanding how
Boeing approaches problem-solving and in figuring out how
best to bid on a similar project in the future, for example, by
underbidding Boeing on tasks at which Boeing appears least
efficient.
The antenna documents underlying counts 3 and 5 con-
tained information regarding the number of elements in the
antenna. Farag testified that such information was significant
because it established that Boeing could install antenna mod-
ules on the space shuttle without a system for active cooling.
The information was economically significant, according to
Farag, because it would give competitors insight into the effi-
ciency that Boeing had obtained and because the number of
elements affected the cost of developing the antenna. Impor-
tantly, Farag also testified that, unlike the integration project,
the development of the antenna itself was not pursuant to a
18290 UNITED STATES v. CHUNG
sole-source contract. That project was open to competition
from other companies, and Farag specifically identified a
potential competitor. Consequently, Boeing derived economic
value from keeping secret the information regarding the num-
ber of elements in its proposed antenna.
[10] Viewing the evidence in the light most favorable to
the prosecution, we therefore conclude that there was suffi-
cient evidence to support the district court’s finding that the
documents underlying counts 2 through 5 contained trade
secrets.
c. Delta IV Rocket Documents
Defendant also possessed two documents related to the
Delta IV Rocket, a booster rocket that is designed to launch
manned space vehicles. His possession of those documents
underlies counts 6 and 7 of the indictment. Defendant does
not contest the district court’s finding that the Delta IV docu-
ments contained trade secrets.
d. Defendant’s Intent to Benefit China
[11] To convict under § 1831 of the EEA, the government
must prove that Defendant acted with the intent to benefit a
“foreign government, foreign instrumentality, or foreign
agent.” 18 U.S.C. § 1831(a). Unlike the foreign agent count,
which required evidence of a foreign government’s direction
or control, criminal liability under the EEA may be estab-
lished on the basis of Defendant’s intent alone.
We hold that there was sufficient evidence to support the
district court’s finding that Defendant possessed the relevant
trade secret documents during the limitations period with the
intent to benefit China. The government presented ample evi-
dence that, during the 1980s, Defendant intended to benefit
China by providing technical information responsive to
requests from Chinese officials and by delivering presenta-
UNITED STATES v. CHUNG 18291
tions to Chinese engineers. Defendant also delivered a presen-
tation on the space shuttle to Chinese engineers in 2001. Five
years later, federal agents discovered that Defendant pos-
sessed thousands of Boeing’s technical documents, some of
which he had downloaded and catalogued in 2003, and some
of which contained trade secrets.
[12] Defendant argues that there is insufficient evidence to
prove that his intent to benefit China extended to the posses-
sion of trade secrets, as opposed to technical documents in
general. Given Defendant’s history of passing technical docu-
ments to China, however, a rational trier of fact reasonably
could infer from Defendant’s more recent possession of simi-
lar documents that his intent to benefit China persisted well
into the limitations period and extended to his possession of
the trade secrets. Moreover, given Defendant’s history of
delivering information to China, and the absence of any evi-
dence (other than his own exculpatory testimony) regarding
his scholarly or literary intentions, a rational fact-finder could
reasonably discount Defendant’s explanation that he pos-
sessed the documents because he intended to write a book.
Thus, viewing the evidence in the light most favorable to the
prosecution, there was sufficient evidence to conclude,
beyond a reasonable doubt, that Defendant possessed the
trade secret documents with the intent to benefit China. We
therefore affirm Defendant’s convictions for violating the
EEA.
3. Conspiracy to Violate the EEA
Defendant argues that there is not sufficient evidence to
prove beyond a reasonable doubt that, during the limitations
period, he conspired with others to violate the EEA. We dis-
agree.
To prove a criminal conspiracy, the government must
show: “(1) an agreement to engage in criminal activity, (2)
one or more overt acts taken to implement the agreement, and
18292 UNITED STATES v. CHUNG
(3) the requisite intent to commit the substantive crime.”
United States v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008)
(per curiam) (internal quotation marks omitted).
[13] Again, the record amply demonstrates that Defendant
agreed to collect and transmit technical information to China
in the 1980s. In May 1987, Gu Weihao wrote to Defendant to
request assistance on technical issues concerning aircraft and
the space shuttle. He suggested that Defendant pass any infor-
mation through Chi Mak because that “channel [was] much
safer than others.” In 1988, Gu Weihao wrote that he hoped
Defendant would “provide information on advanced technolo-
gies” and that “there [was] no need to limit the scope that we
proposed while we were in the United States.” Again, Gu
Weihao suggested that Defendant should forward all informa-
tion through Chi Mak because it would be “safer and faster.”
Thus, the record demonstrates that Defendant, Gu Weihao,
and Chi Mak agreed that Defendant would pass information
on advanced technologies to China. Although there is no
direct evidence that Defendant specifically agreed to pass
trade secrets to China, a rational trier of fact could reasonably
infer from Gu Weihao’s letters and from Defendant’s posses-
sion of the trade secret documents that Defendant did not
intend to except such documents from the scope of the agree-
ment.
[14] The difficult issue presented by this case is whether
the agreement between Defendant, Gu Weihao, and Chi Mak
continued into the limitations period. Viewing the evidence in
the light most favorable to the prosecution, we conclude that
there is insufficient evidence to support the finding that
Defendant conspired with Gu Weihao during the limitations
period.8 The bare fact that Defendant wrote to Gu Weihao in
8
We disagree with the district court’s finding that Defendant conspired
during the limitations period with Professor Gu; Bu Shi Lin, an official
with China’s Aviation Ministry; Consul Wu Hui Jun; Zhao Zhen Lan;
Chen Qinan; Engineer Feng; and Consul Shang. There is no evidence that
UNITED STATES v. CHUNG 18293
2003 is insufficient to prove a continuing conspiracy, given
that Gu Weihao last requested information in 1988 and pur-
portedly retired in 1992. All subsequent correspondence
between Defendant and Gu Weihao that appears in the record
discusses only personal issues and makes no mention of tech-
nical information.
[15] By contrast, the record does support the district
court’s finding that Defendant conspired with Chi Mak to
pass trade secrets to China during the limitations period. As
recounted above, the record shows that Defendant agreed with
Chi Mak in the 1980s to deliver information on advanced
technologies to China. The government also presented evi-
dence that Defendant downloaded shuttle design documents
from a restricted Boeing database in 2002, approximately four
months before the limitations period began. Chi Mak’s name
and telephone numbers were written in Chinese on one of
those documents. During the limitations period, Defendant
downloaded, indexed, and modified shuttle design specifica-
tions. Although the government does not allege that the shut-
tle design documents contained trade secrets, a rational trier
of fact could reasonably infer from Defendant’s unauthorized
Defendant maintained contact with any of those individuals during the
limitations period. The record shows that, in 1985, Defendant delivered
material on the B-1 Bomber to Chen Qinan and Engineer Feng by for-
warding it through Zhao Zhen Lan. But it appears from the record that
Defendant sent that material in response to a one-time request; there is no
evidence of contact with those officials after 1985.
Putting the limitations period aside, the evidence of an agreement to
transmit trade secrets between Defendant and several of his alleged co-
conspirators is too attenuated to support a finding of conspiracy. For
instance, Defendant delivered only graduate course materials and maga-
zines to Professor Gu in the late 1970s. There is no evidence that he
agreed to send anything to Professor Gu that was not available to the gen-
eral public. Moreover, the only evidence of a conspiracy between Defen-
dant and Bu Shi Lin, Consul Wu, and Consul Shang consisted of
Defendant’s journal entries that document sporadic social contact with
those officials, usually over dinner.
18294 UNITED STATES v. CHUNG
collection of such data that Defendant continued to work with
Chi Mak to pass technological information to China. It is
equally reasonable to infer that Defendant’s possession of the
trade secret documents was part of that same effort. Thus,
viewing the evidence in the light most favorable to the prose-
cution, we conclude that a rational trier of fact could have
found, beyond a reasonable doubt, that Defendant conspired
with Chi Mak to violate the EEA after February 6, 2003.
4. False Statement
[16] We also hold that there was sufficient evidence to
support Defendant’s conviction under 18 U.S.C. § 1001.9 The
district court correctly found that Defendant “knowingly and
willfully” made a materially false statement to federal agents
when he told them that his boss, William Novak, had given
him permission to take work documents home. While being
interviewed by federal agents, Defendant claimed that, though
engineers generally were not allowed to do so, Novak had
made an exception for him. According to Agent Moberly,
Defendant explained that, when his division was “closing up
shop,” Novak asked him if he wanted to take the documents
home because, otherwise, they were going to be destroyed.
At trial, Novak testified that, when the shuttle group moved
9
Title 18 U.S.C. § 1001 provides, in pertinent part:
(a) Except as otherwise provided in this section, whoever, in
any matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, know-
ingly and willfully—
....
(2) makes any materially false, fictitious, or fraudulent state-
ment or representation; . . .
....
shall be fined under this title[ or] imprisoned not more than 5
years . . . .
UNITED STATES v. CHUNG 18295
to a smaller facility in 1999, he instructed his engineers to dis-
pose of obsolete data in designated dumpsters and to box up
unneeded data to send to a secure storage facility. Novak fur-
ther testified that he did not recall telling his engineers that
they could take work documents home, nor did he recall
Defendant making such a request. As to the general rule and
any exceptions, Novak testified:
We weren’t allowed to, but occasionally I’m sure
some of us if we needed to finish an assignment or
something, guys would take some stuff home with
the expectation to bring it back the next day or the
next few days or whatever.
[17] Defendant argues that Novak’s testimony was insuffi-
cient to prove that Defendant lied because Novak testified
only that he could not recall giving Defendant permission.
Defendant is correct that Novak’s testimony does not squarely
contradict Defendant’s statement. But a rational trier of fact
could reasonably infer, beyond a reasonable doubt, that
Defendant had not obtained exceptional permission from
Novak, given Boeing’s general policy against taking work
documents home permanently and the care with which Boeing
disposed of the obsolete documents when Defendant’s divi-
sion closed. Also, several Boeing engineers testified that they
could take documents home temporarily, but never perma-
nently. Thus, viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could reasonably
conclude, beyond a reasonable doubt, that Defendant falsely
stated that he had permission to take Boeing documents home.
B. Brady Claims
Defendant argues that the prosecution violated its duty to
disclose exculpatory information as required by Brady v.
Maryland, 373 U.S. 83 (1963), and in violation of the Fifth
Amendment’s Due Process Clause. Specifically, Defendant
takes issue with the prosecution’s failure to turn over three
18296 UNITED STATES v. CHUNG
documents: (1) DX 580, a written summary, prepared by Boe-
ing engineers Tony Chi and William Novak, analyzing the
content and sensitivity of the documents found at Defendant’s
home; (2) DX 606, a spreadsheet that Novak had prepared
shortly before trial summarizing his review of a series of gov-
ernment trial exhibits; and (3) a “302 memorandum” prepared
by FBI Agent Gaylord, lead case agent on the Chi Mak case,
in which he memorialized a telephone interview with Profes-
sor Gu. Reviewing de novo, United States v. Price, 566 F.3d
900, 907 (9th Cir. 2009), we affirm the district court’s deter-
mination that no Brady violations occurred.
To prevail on a Brady claim, Defendant must establish that:
(1) the evidence at issue is “favorable to the accused, either
because it is exculpatory, or because it is impeaching”; (2) the
evidence was suppressed by the government; and (3) preju-
dice resulted. Id. (internal quotation marks omitted). “The
touchstone of the prejudice analysis is whether admission of
the suppressed evidence would have created a reasonable
probability of a different result.” Id. at 911 (brackets and
internal quotation marks omitted).
[18] In this case, no prejudice resulted from the delayed
production of DX 580 and DX 606. Shortly before trial, Boe-
ing produced DX 580 to the defense in response to a sub-
poena. Although defense counsel did not discover DX 580
among the subpoenaed materials until June 8, 2009 (the day
before the fifth day of trial), the defense recalled Novak and
used the document to cross-examine him. After the court
ordered Boeing to conduct a search for any reports similar to
DX 580, Boeing produced DX 606 on June 15, 2009. Defen-
dant then was allowed to recall and cross-examine Novak and
Agent Moberly regarding the contents of DX 606. Because
Defendant used the disputed evidence effectively at trial, no
prejudice resulted from Boeing’s failure to turn over the docu-
ments sooner. See United States v. Woodley, 9 F.3d 774, 777
(9th Cir. 1993) (holding that the defendant was not prejudiced
because he used the evidence at trial, even though he could
UNITED STATES v. CHUNG 18297
not use the suppressed documents in the opening statement).
Indeed, defense counsel admitted to the district court that,
with respect to DX 580 and DX 606, Defendant was “not ulti-
mately prejudiced because . . . we were able to get what I
think is the ultimate best facts out on the table.” Given that
Defendant has not established prejudice, he cannot make out
a viable Brady claim.
[19] Similarly, Defendant was not prejudiced by the gov-
ernment’s failure to turn over the memorandum that summa-
rized Agent Moberly’s interview of Professor Gu. According
to the memorandum, Gu denied knowing Defendant and
denied requesting or receiving any of the materials mentioned
in Defendant’s 1979 letter. Agent Gaylord then read Gu’s let-
ter to Defendant thanking him for the materials. Gu responded
that it seemed that he had, in fact, received the materials but
that he still did not remember Defendant. The government did
not turn over the memorandum before trial or otherwise notify
Defendant that it had interviewed Professor Gu.
After trial, defense counsel learned that Gu was living in
the United States as a naturalized citizen and that he had been
interviewed by the FBI before trial. Defense counsel met with
Gu, who told counsel that he did not specifically recall Defen-
dant. He also reported that the materials described in Defen-
dant’s letter could have been obtained from textbooks, student
materials, or publications. Additionally, Gu explained that the
reference in the letters to China’s modernizations was used by
Chinese intellectuals throughout the world and was not rooted
in communism or support for the Chinese regime. Finally, he
stated that he had told Agent Gaylord essentially the same
information.
During an evidentiary hearing on the prosecution’s failure
to produce the Gu memorandum, Defendant submitted to the
court a letter written by Gu, dated January 21, 2010. That let-
ter stated that the “technical information mentioned in [Defen-
dant’s] letter(s) that was gifted to Harbin Institute of
18298 UNITED STATES v. CHUNG
Technology is publicly published materials, does not harm the
United States.”
[20] The district court properly ruled that Defendant was
not prejudiced by the government’s failure to produce the
memorandum. The memorandum itself is not exculpatory; it
merely documents that Gu did not remember Defendant and
did not remember receiving materials from Defendant.
Even assuming that disclosure of the memorandum would
have led defense counsel to Professor Gu before trial, no prej-
udice resulted from Defendant’s inability to present Gu’s
explanation of his correspondence with Defendant in 1979.
Even if the information that Gu later volunteered to defense
counsel explained away the 1979 correspondence, that clarifi-
cation would not have created a reasonable probability of a
different result. The government presented considerable other
evidence establishing Defendant’s desire to contribute his
expertise to China, as recorded, for instance, in his correspon-
dence with Chen Qinan. Moreover, Defendant’s intent to ben-
efit China was apparent from his conduct. Thus, he was not
prejudiced by the absence of the Gu memorandum and, conse-
quently, there was no Brady violation.
C. Confrontation Clause
[21] Defendant also argues that he is entitled to a new trial
because the district court violated his Sixth Amendment right
to confront the witnesses against him by admitting a State
Department official’s certification that the phased array
antenna and Delta IV documents contained technical data that
was export-controlled. The government does not dispute that
the admission of that certification was error. Rather, the gov-
ernment contends that the document’s admission was harm-
less. We agree.
We review de novo whether admission of a document vio-
lates the defendant’s Confrontation Clause rights. United
UNITED STATES v. CHUNG 18299
States v. Orozco-Acosta, 607 F.3d 1156, 1162 (9th Cir. 2010),
cert. denied, 131 S. Ct. 946 (2011). In evaluating whether a
violation is harmless, we consider: (1) the importance of the
witness’ testimony in the prosecution’s case; (2) whether the
testimony was cumulative; (3) the presence or absence of evi-
dence corroborating or contradicting the testimony of the wit-
ness on material points; (4) the extent of cross-examination
otherwise permitted; and (5) the overall strength of the prose-
cution’s case. Id. at 1161-62.
[22] Considering those factors, we hold that the admission
of the certification was harmless. The exhibit was not impor-
tant to the government’s case because, to establish criminal
liability under the EEA, the government need not prove that
the relevant documents were subject to export controls. 18
U.S.C. § 1831. Rather, the government need only prove that
Defendant knowingly possessed trade secrets with the intent
to benefit China. Id. Additionally, the district court’s decision
did not mention whether any of the trade secret documents
was export-controlled. Because the export-controlled status of
the trade secret documents was not a necessary element of any
count of conviction, we need not consider whether the evi-
dence was cumulative or whether there was other evidence
that corroborated or contradicted the State Department’s certi-
fication. Also weighing in favor of harmlessness is the fact
that Defendant had an opportunity to cross-examine the gov-
ernment’s witnesses as to whether the information in the
phased array antenna or Delta IV documents was in the public
domain. Moreover, the prosecution presented a strong case
that the four antenna documents contained trade secrets. Engi-
neer Farag testified that the hours estimates and the informa-
tion regarding the number of elements to be used in the
antenna were kept secret by Boeing and that the information,
if disclosed, would have been valuable to Boeing’s competi-
tors. As for the Delta IV documents, Defendant does not con-
test that they contained trade secrets. Thus, the weight of the
Orozco-Acosta considerations tips in favor of the prosecution.
The admission of the certification was therefore harmless.
18300 UNITED STATES v. CHUNG
D. Admission of the Unaddressed “Tasking List”
[23] Next, Defendant seeks a new trial on the ground that
the district court erred by admitting the purported tasking list
that was found in Chi Mak’s home. At trial, Defendant
objected to the list’s admission on hearsay grounds. Review-
ing for abuse of discretion, United States v. Gallenardo, 579
F.3d 1076, 1081 (9th Cir. 2009), we hold that the district
court properly admitted the list over Defendant’s objection
because it was not offered for the truth of the matters asserted
and therefore was not hearsay. The list contained no declara-
tion of fact capable of being proven true or false. See United
States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994)
(“Instructions to an individual to do something are . . . not
hearsay . . . because they are not declarations of fact and
therefore are not capable of being true or false.” (citation and
internal quotation marks omitted)). Thus, the district court did
not abuse its discretion by admitting the list.
Defendant also challenges the relevance of the document
for the first time on appeal. Defendant argues that the list is
not connected to Defendant because it was neither addressed
to Defendant nor found in Defendant’s home. Rather, it was
found in Chi Mak’s home, in an envelope addressed to Chi
Mak, and with a return address for Shouling Barnes, who is
Chi Mak’s sister.
We review an evidentiary ruling for plain error when, on
appeal, the defendant asserts a different basis for his objection
than that asserted at trial. Gallenardo, 579 F.3d at 1081. Here,
the district court did not plainly err by admitting the list
because: (1) it was found in Chi Mak’s home; (2) Gu Weihao
had suggested in several of his letters that Defendant forward
information through Chi Mak, and (3) the list requests, among
other things, “Boeing Company’s Technical Information on
Chemical Milling,” “NASTRAN—NASA Structural Analysis
Program,” “McDonald Douglas Aircraft Company, Process
Standards for the manufacturing of F-15 and F-18.” Defen-
UNITED STATES v. CHUNG 18301
dant had access to that information, and documents respon-
sive to the list were found in Defendant’s home. Thus, the list
was relevant because it tended to prove that Defendant col-
lected documents in response to requests from China. See
Fed. R. Evid. 401. The fact that the list was not addressed to
Defendant may diminish its probative value to some degree,
but it does not render the list irrelevant. The district court
therefore did not plainly err in admitting the evidence.
Even if the district court had erred by admitting the list, the
error would have been harmless. See Gallenardo, 579 F.3d at
1081 (holding that the erroneous admission of evidence is
harmless when “it is more probable than not” that “the evi-
dence did not affect the [trier of fact’s] verdict.” (internal quo-
tation marks omitted)). The government presented many other
letters and two other tasking lists that requested technical
information from Defendant. Although Defendant correctly
argues that the disputed list contains the most specific
requests for information regarding military aircraft, the task-
ing list that Defendant received from officials at the Nan-
chang aircraft plant also requested information on military
specifications. Thus, it is more probable than not that the
exclusion of the list found in Chi Mak’s home would not have
materially affected the verdict.
E. Sentencing
Defendant maintains that the district court erred in calculat-
ing his offense level under the Sentencing Guidelines. Specif-
ically, he argues that the court should not have applied
U.S.S.G. section 2M3.2 to determine Defendant’s offense
level. We review “the district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s application
of the Sentencing Guidelines to the facts of a case for abuse
of discretion, and the district court’s factual findings for clear
error.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th
Cir. 2006) (internal quotation marks and brackets omitted).
18302 UNITED STATES v. CHUNG
According to U.S.S.G. section 3D1.2, the foreign agent
offense (Count 10) and the EEA and conspiracy offenses
(Counts 1 through 7) should be grouped together. The offense
level for grouped charges is determined by using the guideline
resulting in the highest offense level. U.S.S.G. § 3D1.3. The
Guidelines’ statutory index shows section 2B1.1 as the guide-
line corresponding to the EEA offenses; that section provides
a minimum base offense level of 6, with increases depending
on the amount of loss caused by the offense. There is no
assigned guideline, however, for acting as an unregistered for-
eign agent.
[24] The Guidelines instruct that, when no guideline exists
for a particular crime, the court should use the most analogous
guideline. U.S.S.G. § 2X5.1. Here, the district court decided
that section 2M3.2, entitled “Gathering National Defense
Information,” was most analogous for sentencing on the for-
eign agent count. That section dictates an offense level of 30
unless the defendant gathered top secret information, in which
case the offense level is 35.
Defendant asserts that section 2M3.2 applies only when a
defendant has gathered government-classified information,
whereas he did not possess such classified information. He
urges that section 2B1.1 is more analogous. The district court
rejected that proposed analogy because it is not possible accu-
rately to measure pecuniary loss caused by the crime of acting
as an unregistered foreign agent.
[25] We hold that the district court properly chose section
2M3.2 as the most analogous guideline for the foreign agent
charge. Contrary to Defendant’s argument, section 2M3.2 is
not limited to offenses involving government-classified infor-
mation. The accompanying commentary states: “The statutes
covered in this section proscribe diverse forms of obtaining
and transmitting national defense information with intent or
reason to believe the information would injure the United
States or be used to the advantage of a foreign government.”
UNITED STATES v. CHUNG 18303
U.S.S.G. § 2M3.2 cmt. background. Although the commen-
tary explains that the offense level distinctions for espionage-
related offenses “are generally based on the classification of
the information gathered or transmitted,” the relevant guide-
lines divide such information into only two categories: “top
secret” and “otherwise.” U.S.S.G. §§ 2M3.1-2M3.4. Thus, the
Guidelines lump all information that is not “top secret” into
one category; the offense level distinctions do not require that
the information gathered be classified.
[26] In the alternative, Defendant maintains that the term
“national defense information” at least presupposes that the
information improperly transmitted be held by the govern-
ment. We do not think that is required for application of sec-
tion 2M3.2 by analogy.
[27] This guideline typically applies to a conviction for
espionage under 18 U.S.C. § 793. The Supreme Court long
ago held that, for an espionage conviction to stand, the infor-
mation in question must be nonpublic to some degree; other-
wise there could “be no reasonable intent to give an advantage
to a foreign government.” United States v. Gorin, 312 U.S.
19, 28 (1941) (interpreting the Espionage Act of 1917, the
predecessor statute to § 793). Documents need not be marked
secret, so long as they relate to national defense and are
“transmitted with the intent to advantage a foreign nation or
injure the United States.” United States v. Lee, 589 F.2d 980,
990 (9th Cir. 1979). In this case, Defendant gathered and gave
to Chinese officials nonpublic information related to the X-37
space vehicle, the Delta IV Rocket, the F-15 Fighter, and the
Chinook Helicopter. When transmitting that secret informa-
tion, which related to national defense, Defendant had the
intention to advantage China. That is no less true where the
information was in the hands of a government contractor,
rather than in the hands of the United States itself. Consider-
ing that the conduct underlying Defendant’s offense involved
gathering national defense information, the district court did
18304 UNITED STATES v. CHUNG
not err in choosing section 2M3.2 as the most analogous
guideline applicable to the foreign agent conviction.
AFFIRMED.