November 14, 2022
/via certified mail/
Rachael S. Rollins, U.S. Attorney
Joshua S. Levy, First Assistant U.S. Attorney
United States Federal Courthouse
1 Courthouse Way, Suite 9200
Boston, MA 02210
Dear Ms. Rollins and Mr. Levy,
On behalf of the undersigned organizations, we write to express our deep concern with the case United States v. Haoyang Yu, and plead to your good judgment to withdraw the only remaining criminal charge against Haoyang Yu, a Lexington resident, because we are concerned that Mr. Yu was targeted due to his Chinese origin.
As you have announced in your news release, Mr. Yu was convicted on May 26, 2022 of one count of possessing a stolen trade secret after a month-long jury trial. The jury acquitted Mr. Yu of the other 18 charges, including 11 counts of possessing stolen trade secrets, four counts of wire fraud, two counts of illegal exports, and one count of immigration fraud. In addition, Judge William G. Young had dismissed two counts.
We believe that it is in the interest of the justice system for the only remaining charge to be withdrawn. We understand that Judge William G. Young still holds under advisement Mr. Yu’s pre-trial motion to dismiss the case against him due to unlawful selective prosecution and enforcement. Specifically, Mr. Yu alleged that he was targeted because of his Chinese ancestry.
While we are not in a position to make legal arguments, many of us have been following this case closely. How did a garden variety trade secret case attract the attention of the federal agencies in the first place? If Mr. Yu indeed did anything wrong, shouldn’t it be ADI sending him a cease-and-desist letter or bringing forward a civil case, instead of the United States, the most powerful government in the world, pressing a criminal charge against Mr. Yu with 21 counts of trade secrets, wire fraud, illegal exports, immigration and naturalization fraud? In fact, after the criminal trial was concluded, ADI filed a civil lawsuit against Mr. Yu in late August 2022, which will permit the company to obtain any appropriate legal remedies.
We cannot help but wonder, if the defendant were not Haoyang Yu, a first generation immigrant from China, but a descendant of pilgrims on the Mayflower, would he have been subjected to over four years of exhaustive criminal investigation by multiple federal agencies and being charged with twenty one counts of crimes by the United States?
In supporting his pre-trial motion to dismiss based on unconstitutional selective prosecution or selective enforcement, Mr. Yu provided the court with a long list of civil trade secret cases in which the government chose not to elevate to criminal prosecution, including a civil case filed by ADI against non-Chinese defendants. In rejecting Mr. Yu’s challenge, Judge Young ruled that Mr. Yu had yet to prove that he was “similarly situated” as those individuals in those civil trade secret cases. In arriving at this conclusion, Judge Young pointed out that if the alleged trade secret theft involved export control violations or passing the stolen technology to a foreign entity, as Mr. Yu was accused of, it would have been vastly different from trade secret theft among American companies. However, Judge Young wrote, if the Government cannot prove these allegations, “Yu’s motion would have far more bite.” In fact, final charges brought against Mr. Yu did not include charges of passing trade secrets to a foreign entity, and he was acquitted on the export control violation charges. Following the reasoning stated in Judge Young’s ruling, it seems to us that Mr. Yu’s motion to dismiss based on unconstitutional selective enforcement does have more bite after the jury trial.
In addition, regarding export control violations, Mr. Yu was thoroughly investigated by the government and charged with two counts of illegal exports, of which he was found not guilty by the jury. In contrast, Mr. Blount, the former owner of Custom MMIC, LLC, whose tip to the government triggered criminal investigations against Mr. Yu, as far as we know, was never investigated or charged by the government regarding export control violations, despite his admission of such violation when he testified at trial as a government witness. In his testimony, Mr. Blount did not deny the defense attorney’s claim that a chip design of one of his company’s products that dated back to 2015 was export controlled, but they did not make any attempt to obtain a license for a GDS file before 2019. Mr. Blount said on the stand, “We were just getting better as a company and understanding the law.” On the other hand, Mr. Yu and his company Tricon MMIC, LLC, was not given a chance to get better as a company and understand the law. It seems to us that Mr. Yu has been subjected to a different standard than Mr. Blount. One couldn’t help but wonder if race and country of origin might have played a role here.
Haoyang Yu is a proud U.S. citizen who has pledged his allegiance to the United States, and has been living in this country he calls home for more than 20 years. He is a husband, a father of two boys who were born and raised in the United States, and an active volunteer at school and community events in Lexington, Massachusetts.
Many of us are among the same cohort of STEM (Science, Technology, Engineering and Mathematics) immigrants who came to the United States since the 1990s when the U.S. scouted top talents in STEM across the globe. China, a country that just opened its door, was a primary target of this effort. This country is built by immigrants, and the STEM immigrants have played an important role to help the US maintain its global leadership in science and technology.
Having traveled a similar path as Mr. Yu, we consider ourselves proud Americans embracing the American way of life. We could not choose our birthplaces or the color of our skin, but we have chosen who we want to be and how to live our lives. To our dismay, however, we still face the “perpetual foreigner” bias, that we are considered foreigners in our own country and our loyalties are questioned.
In Mr. Yu’s case, while Mr. Yu became a permanent resident of the U.S. in June 2009, and a naturalized citizen in March 2017, he was described as a “Chinese national” in an affidavit submitted in the fall of 2018 by Mr. Hickok, the Department of Commerce agent who initiated licensing investigations against Mr. Yu. In the affidavit that was submitted for seeking search warrants, Mr. Hickok mentioned the case as a threat to “national security.” He never went back to the judge to correct that mistake. Such characterization may have misled the judge. When Judge Young ruled against Mr. Yu’s motion to dismiss based on unlawful selective prosecution or selective enforcement, he mentioned that Mr. Yu’s motion claims that he was the victim “based on his Chinese nationality”, while Mr. Yu is of Chinese origin but not Chinese nationality.
We have also noticed that in the press releases published on your website, reports on Mr. Yu’s case are categorized under topics of “counterintelligence” or “national security.” However, no such charges were brought to the court. Perhaps in some people’s mind, there is an implicit bias that Chinese origin equates to working for the Chinese government? In Mr. Yu’s case, the most thorough investigations did not find any connection to the Chinese government.
If anything, many of us, including Mr. Yu, chose to come to the United States because we have faith in American democracy and its checks and balances, and we share the belief that government is of the people, by the people, and for the people. When speaking of his three plus years of uphill legal battle, Mr. Yu has expressed his appreciation of the transparency of the procedures, the work of the judge and jury, his attorneys’ professionalism, and his chances of being heard. He also appreciates the prosecution dropping the case against his wife Yanzhi Chen.
Mr. Yu is a father of two school-aged boys, who were both born and raised in the United States. During his legal ordeal, Mr. Yu and his wife have been doing everything they can to shield their sons from the trauma and maintain a sense of normalcy. They take their sons to sports practices and community events, trying not to deprive them of what America has to offer.
We, as a nation, have come a long way since the days of the Chinese Exclusion Act and Japanese Internment camps, but many still have an explicit or implicit bias that when they see an Asian face, their gut feeling is that those people are not one of us. We are Americans, and our loyalty is with the United States. Please do not assume that we are representatives of foreign governments.
It gives us hope when we see Ms. Rollins’ statement that “when our investigations or newly presented information leads us to see our prior decisions in a new light, I am not afraid of changing course”. We consider ourselves your partners in justice, and hope that the voices from the community can help you make better-informed decisions.
In this spirit, we respectfully ask that you take all the circumstances into consideration and withdraw the only remaining criminal charge against Mr. Yu. It is the just thing to do, especially considering that there is now a civil case for this dispute.
Respectfully,
/s/ Jian Helen Yang on behalf of the Asian Americans for Equal Rights (AAER)
P.O. Box 361
Lexington, MA 02420
Co-signing organizations:
Asian Americans for Equal Rights (AAER)
Chinese Americans of Lexington (CALex)
Chinese Americans of Massachusetts (CAMA)
Chinese American Network of Winchester (CAN-Win)
Chinese Culture Society of Greater Nashua
Fukien Chen Association of North America
Sharon Chinese Association
Tsinghua Alumni Association of Greater Boston
United Chinese Americans (UCA)
Here is a brief background:
In 2019, Haoyang Yu, a former Analog Devices, Inc. (ADI) engineer residing in Lexington MA, was indicted by federal prosecutors on allegations relating to possessing stolen trade secrets, wire fraud, illegal exports, and immigration fraud, for a total of 21 charges. Mr. Yu’s wife Yanzhi Chen was also indicted on wire fraud charges.
On May 26, 2022, after a month-long trial, a federal jury in Boston acquitted Mr. Yu on 18 of the 19 charges pending against him at trial, including multiple counts of possessing stolen trade secrets, wire fraud, illegal exports, and immigration fraud. The judge had dismissed one wire fraud charge and acquitted him on a naturalization fraud charge. Media coverage of the verdict is available on The Boston Globe, Law360, and The Lexington Observer.
About a month later, prosecutors dropped all charges against Ms. Chen.
Mr. Yu faces up to 10 years of prison, three years of supervised release, and a $250,000 fine for his conviction on the trade secret charge. U.S. Attorney Rachael Rollins’s office called it “the first-ever conviction following a criminal trial of this kind in the District of Massachusetts” in their press release.
Mr. Yu’s attorney subsequently moved to dismiss the single count of conviction for possessing a trade secret. In addition, on Nov. 14, 2022, they renewed their motion to
dismiss due to unconstitutional selective enforcement.
As we are concerned that Mr. Yu was targeted because of his Chinese origin, a group of organizations have come together to write a letter to U.S. Attorney Rachael Rollins and Josh Levy, her top deputy, asking for their consideration to drop the single remaining criminal charge against Mr. Yu.
Ms. Rollins once stated, “the government’s charging decisions deeply impact people’s lives. We have an on-going obligation to be open and receptive to new information in every matter we pursue… When our investigations or newly presented information leads us to see our prior decisions in a new light, I am not afraid of changing course.”
We are all for justice. We hope that the voices from the community, along with the fact that Mr. Yu was acquitted on all but one charge, will motivate federal prosecutors to re-evaluate this case.